)f  California 
Regional 
Facility 


SANTA  BARBATE  STATE  COLLEGE  LIBRAE? 


INTERVENTION 

IN 
INTERNATIONAL  LAW 


By 
ELLERY  C.  STOWELL 

AUTHOR  OF  THE  DIPLOMACY  OF  THE  WAR  OF  1914 


But  war  s  a  name  which  -wire  iheir  subjects  wise 
Kings  would  not  play  at—  COWPER 


WASHINGTON,  D.  c. 

JOHN  BYRNE  &  CO. 

1921 


Copyright,  1921,  by  Ellery  C.  Stowell 
All  Rights  Reserved 

Published  November,  1921 


lA 


BARBARA  STATC  COLLEGE  LIBRAE 


To 

THE  SPIRIT  OF 
HIGH  IDEALISM  AND  PRACTICALITY 

BY  WHICH 

IN  THE  CONDUCT  OF  FOREIGN  POLICY 

AND 

THE  OBSERVANCE  OF  THE  LAW  OF  NATIONS 
THE  Two  BRANCHES  OF  THE  ANGLO-AMERICAN  AMITY 

WERE  GUIDED  TOWARD 
THE  COMMON  AIM  OF  INTERNATIONAL  JUSTICE 

BY 

THEODORE  ROOSEVELT  AND  SIR  EDWARD  GREY 
THIS  BOOK  is  DEDICATED 


PKEFACE 

The  purpose  of  this  book  is  to  set  forth  the  occasions 
when  a  state  is  justified  in  employing  force  or  the 
menace  of  force  to  influence  the  conduct  of  another 
state.  It  is  no  part  of  this  purpose  to  discuss  the 
means  or  machinery  which  exists  or  may  be  organized 
to  secure  the  enforcement  of  the  correct  principles,  for 
this  subject  is  a  matter  of  international  procedure  to 
which  a  succeeding  volume  will  be  devoted.  No  sub- 
ject in  the  whole  range  of  man's  relations  merits  a 
more  careful  consideration  than  does  the  question  of 
the  justice  of  international  intervention.  Unless  the 
law  is  understood,  statesmen  cannot  rightly  guide 
the  nations.  But  the  decision  as  to  the  justice  of  the 
grounds  of  intervention  or  non-intervention  in  any  par- 
ticular instance  must  in  a  democracy  be  determined 
by  the  prevailing  opinion  of  its  citizens.  Each  citizen, 
therefore,  bears  his  part  of  this  supreme  responsi- 
bility. 

In  entering  upon  an  examination  of  the  law  and 
practice  of  intervention,  it  is  of  particular  importance 
to  remember  that  International  Law  is  discovered  in 
the  general  practice  of  all  the  states. 

It  will  be  found  that  the  rule  of  conduct  which 
general  practice  recognizes  as  correct  does  not  justify 
a  selfish  insistence  upon  the  right  of  each  state  to  act 
absolutely  independently  even  within  its  own  domain, 
nor  does  it  authorize  any  state  lightly  to  interfere  with 
the  independence  of  a  neighbor.  The  law  of  inter- 
vention lies  between  the  extremes  of  absolute  inde- 
pendence on  the  one  hand  and  unregulated  inter- 
ference on  the  other.  I  have  tried  to  trace  the  line  of 


vi  PREFACE 

this  happy  mean  in  the  light  of  the  precedents  drawn 
from  actual  practice. 

This  investigation  has  resulted  in  the  formulation 
for  the  first  time — as  far  as  I  am  aware — of  a  rule 
of  transcending  practical  importance  for  the  preser- 
vation of  a  just  peace  among  nations,  namely:  That 
no  state  shall  unreasonably  insist  upon  its  rights  or 
pursue  its  interests  to  the  detriment  of  the  op- 
posing rights  and  interests  of  other  states.  The  re- 
fusal to  evince  a  spirit  of  considerate  compromise 
or  adjustment  upon  the  basis  of  the  relative  import- 
ance of  the  conflicting  rights  and  interests  is  a  viola- 
tion of  international  law,  which  justifies  an  appeal  to 
intervention. 

Viewed  in  their  proper  perspective  of  subordination 
to  this  general  rule,  all  the  other  just  grounds  of  inter- 
vention can  be  discovered  and  defined  so  that  all  states 
of  good  will  may  give  heed  to  the  law  and  cooperate 
to  check  the  transgressions  of  the  evil-doer. 

Intervention  in  the  relations  between  states  is,  it 
will  be  seen,  the  rightful  use  of  force  or  the  reliance 
thereon  to  constrain  obedience  to  international  law. 

E.  C.  S. 
Washington,  October  11,  1921. 


CONTENTS 


CHAPTER  I 

INTERPOSITION 

§1.  Enforcement  of  International  Law . .  1 

2.  Redress   9 

3.  Expiation 21 

4.  Indemnity   35 

5.  Security 36 

6.  Punishment    37 

CHAPTER  II 

INTERNATIONAL  POLICE 

7.  Counter-Intervention 45 

8.  Humanitarian   Intervention    51 

(a)  Persecution   63 

(b)  Oppression    86 

(c)  Uncivilized  Warfare   125 

(d)  Injustice    139 

(e)  Suppression  of  the  Slave  Trade 195 

(f)  Humanitarian  Asylum   205 

(g)  Foreign  Commerce   257 

9.  International   Police   Regulation 277 

10.  Supervision  297 

CHAPTER  III 

NON-INTERFERENCE 

11.  Interference 317 

12.  Violation  of  Sovereignty  322 

13.  Assistance    329 

14.  Support  of  Revolution   345 

15.  Prevention  355 

16.  Self -Preservation    392 

17.  Balance  of  Power   414 

18.  Conquest    431 

19.  Treaty  Rights .438 


viii  CONTENTS 

CHAPTER  IV 

POLITICAL  ACTION 

20.  Imperfect  Rights  and  Duties 447 

21.  Political  Influence 450 

22.  Adjustment  451 

CHAPTER  V 

CONCLUSION 

23.  The  Rule  of  Reason 455 

BIBLIOGRAPHY,   461 

INDEX,  543 


CHAPTER  I 
INTERPOSITION 

§  1.     ENFORCEMENT  OF  INTERNATIONAL  LAW 

The  real  value  of  any  system  of  law  depends  upon 
the  efficacy  of  its  machinery  of  enforcement.  The  legal 
maxim :  No  right  without  a  remedy,  applies  also  to  the 
law  of  nations,  which  is  not  without  remedies  to  protect 
rights  from  injury.  They  are  not,  it  is  true,  the  same 
as  those  employed  in  our  municipal  law;  for  the  law 
of  nations  controls  individuals  through  their  govern- 
ments, which  it  holds  responsible  for  the  observance 
of  the  law.  Hence  it  follows  that  international  remedies 
must  usually  be  directed  in  first  instance  against  the 
delinquent  government. 

SOVEREIGNTY 

This  control  of  the  government  over  individuals  is 
carried  out  through  the  instrumentality  of  territorial 
sovereignty,  which  is  thus  seen  to  be  the  very  heart  of 
the  system.  Each  independent  state  is,  as  it  were,  the 
agent  of  the  law  of  nations  to  enforce  international 
law  within  the  territorial  jurisdiction  over  which  it 
holds  sway.  In  the  absence  of  a  strongly  organized 
central  authority,  no  other  system  is  practical.  The 
independent  states  of  which  international  society  is 
composed  are  jealous  of  any  interference  with  their 
liberty  of  action  within  their  own  territory,  and  sover- 
eignty is  the  only  system  of  enforcing  the  law  which 

does  not  interfere.    Perhaps  it  would  be  more  accurate 

i 


2  INTERPOSITION 

to  say  that  sovereignty  is  the  system  which  reduces 
this  outside  interference  to  a  minimum. 

INTERPOSITION 

International  commerce  and  travel  lead  to  the  es- 
tablishment of  large  numbers  of  aliens  within  the  con- 
fines of  each  independent  state.  Their  rights  and 
privileges  are  placed  under  the  protection  of  interna- 
tional law,  and  each  sovereign  state  in  fulfilling  its 
obligations  under  the  law  is  bound  to  provide  that  they 
suffer  no  injury.  Even  in  the  most  civilized  state  some 
instances  of  injustice  will  occur,  but  the  injured  for- 
eigner who  has  sought  in  vain  to  secure  redress  through 
the  means  afforded  by  the  state  where  he  is  sojourning 
may  bring  his  grievance  to  the  representatives  of  his 
own  government,  and  request  their  interposition  in  his 
defense. 

Interposition  may  be  defined  as  justifiable  action  un- 
dertaken by  a  state  to  induce  another  state  to  respect 
its  rights  under  international  law,  including  the  rights 
of  its  nationals.1  The  protection  of  nationals  through 
interposition  thus  plays  the  part  of  a  useful  check  upon 
the  exercise  of  sovereignty,  which  might  otherwise  be 
inclined  at  times  to  disregard  international  law.2  For 
sovereignty  is  not,  as  some  believe,  a  right  to  act  with 
absolute  independence.  It  is  no  more  than  a  presump- 

*It  is  important  to  use  the  term  ' '  interposition ' '  in  the  sense 
of  intervention  to  secure  redress  for  the  failure  to  recognize 
the  international  law  rights  of  the  intervening  state  and  those 
for  the  protection  of  whose  interests  it  is  responsible, — gener- 
ally its  nationals.  This  use  is  sanctioned  by  present  practice. 
Formerly  it  was  customary  to  use  ' '  diplomatic  intervention. ' ' 
"Interposition"  is  also  currently  used  for  intervention  or 
interference  between  two  states  or  factions  in  conflict.  This 
use  leads  to  confusion,  and  should  be  avoided. 

2Hall  has  noted  this  balance  between  territorial  sovereignty 
and  the  right  of  other  states  to  protect  their  nationals.  (W. 
E.  Hall :  Foreign  Jurisdiction  of  the  British  Crown,  §5,  p.  4.) 


ENFORCEMENT  3 

tion  that  any  action  which  a  state  may  take  within  its 
own  territory  in  the  furtherance  of  international  law 
is  correctly  taken.  So  strong  is  this  presumption  that 
before  any  other  interested  nation  may  interpose  in 
favor  of  a  national  it  must  show  beyond  a  reasonable 
doubt  that  he  has  been  deprived  of  some  of  his  rights 
under  international  law.  When  once  the  evidence  is 
sufficient  to  overcome  the  presumption  of  legality  of 
the  action  of  the  sovereign,  the  situation  is  reversed — 
the  interposing  state  now  has  the  law  of  nations  on  its 
side  and  by  that  law  is  justified  in  insisting  upon  its 
rights.3  If  milder  measures  prove  unavailing,  the  in- 
terposing state  may  use  whatever  force  is  reasonably 
necessary  to  secure  the  recognition  of  its  rights. 

SELF-HELP 

It  sometimes  happens  that  a  weak  or  harassed  gov- 
ernment is  unable  or  unwilling  to  compel  its  nationals 
to  observe  international  law.  In  such  a  situation,  the 
state  whose  nationals  or  whose  interests  are  endan- 
gered may  act  directly  to  compel  the  observance  of  in- 

8"The  right  of  the  government  to  intervene  [interpose]  for 
the  protection  of  its  citizens  in  foreign  lands  and  on  the  high 
seas  never  was  doubted;  nor  was  such  action  withheld  in 
proper  cases."  (J.  B.  Moore:  American  Diplomacy  (1905) 
131).  This  eminent  authority  has  always  regarded  the  pro- 
tection of  nationals  as  a  right  of  the  citizen  which  the  govern- 
ment is  obligated  to  undertake  in  so  far  as  the  superior  in- 
terests of  the  nation  will  allow. 

Compare  this  with  Professor  Borchard's  statement  (Diplo- 
matic Protection,  p.  13)  :  "If  these  rights  of  an  alien  are 
violated  without  proper  redress  in  the  state  of  residence,  his 
home  state  is  warranted  by  international  law  in  coming  to 
his  assistance  and  interposing  diplomatically  in  his  behalf." 
(Cf.  ibid.  399-400.) 

Sir  Travers  Twiss  is  still  more  emphatic  and  considers  that 
a  nation  may  not  forego  insistance  upon  its  rights.  (Law 
of  Nations,  Vol.  II,  p.  5.) 

See  also  remarks  of  Lord  Cromer :  Ancient  and  Modern  Im- 
perialism, p.  3-4. 


4  INTERPOSITION 

ternational  law.  Action  so  taken  is  called  "  self  -help,  "8* 
and  is  a  remedy  which  supplements  interposition.  The 
annals  of  international  relations  are  full  of  interesting 
instances  of  self-help.  In  1831,  when  the  authorities 
of  what  is  now  the  Republic  of  Argentina  failed  to  im- 
pose upon  the  inhabitants  of  the  Falkland  Islands  a 
proper  respect  for  the  rights  of  American  whalers  re- 
pairing thither,  the  Government  of  the  United  States 
had  recourse  to  self-help  and  administered  directly  a 
well-merited  punishment.  The  derelict  condition  of 
authority  over  these  islands  was  terminated  by  Eng- 
land again  taking  possession  of  them,  notwithstanding 
the  protest  of  the  Buenos  Aires  Government.  The  Gov- 
ernment of  Argentina  has  long  persisted  in  maintain- 
ing that  the  United  States  was  in  some  measure  to 
blame  for  this  result.  In  his  annual  message  of  De- 
cember 8,  1885,  President  Cleveland  said: 

''The  Argentine  Government  has  revived  the  long 
dormant  question  of  the  Falkland  Islands,  by  claiming 
from  the  United  State  indemnity  for  their  loss,  at- 
tributed to  the  action  of  the  commander  of  the  sloop- 
of-war  Lexington  in  breaking  up  a  piratical  colony  on 
those  islands  in  1831,  and  their  subsequent  occupation 
by  Great  Britain.  In  view  of  the  ample  justification 

8aSince  recourse  to  self-help  is  never  had  except  in  cases 
where  it  is  necessary  for  the  preservation  of  the  most  impor- 
tant— that  is  the  vital — interests  of  the  state,  there  is  here, 
as  elsewhere,  a  tendency  to  confuse  the  purpose  with  the 
means  and  to  speak  of  the  remedial  action  of  self-help  as 
self-preservation  or  self-defense.  Self-help  is  only  one  of  the 
methods  of  employing  such  means  as  are  found  best  adapted 
to  secure  respect  for  the  rights  of  a  state.  In  self-defense 
and  for  self-preservation,  states  often  have  recourse  to  meas- 
ures of  force  by  way  of  self-help. 

The  term  self-help  is  often  used  to  denote  the  system  of 
self -enforcement  of  the  law,  which  is  characteristic  of  inter- 
national relations.  A  better  term  is  interposition  (see  above 
p.  2). 


ENFORCEMENT  5 

for  the  act  of  the  Lexington  and  the  derelict  condition 
of  the  islands  before  and  after  their  alleged  occupation 
by  Argentine  colonists,  this  Government  considers  the 
claim  as  wholly  groundless."  (Moore's  Digest,  vol.  I, 
p.  298.  The  incident  is  also  discussed  ibid.  p.  876-890, 
and  in  Stowell  and  Munro :  International  Cases,  vol  I, 
p.  208-217.) 

An  interesting  instance  of  collective  action  in 
the  nature  of  self-help  was  that  taken  by  the  Euro- 
pean powers  against  the  Prince  of  Chosu  in  1864.  The 
Tycoon  was  unable,  himself,  to  make  this  unruly  vassel 
observe  the  treaties,  but  he  did  not  oppose  the  direct 
action  of  the  government  intervening  to  enforce  a  com- 
pliance. In  fact,  the  Shogun's  Government  agreed  to 
pay  the  cost  of  the  expedition,  thus  indicating  that  the 
action  might  be  considered  as  taken  for  the  pur- 
pose of  fulfilling  the  obligation  incumbent  upon  the 
local  sovereign.4 

In  1837,  the  Canadian  authorities  crossed  into  the 
State  of  New  York  at  Niagara  and  destroyed  the 
Steamer  Caroline,  in  which  the  Fenians  were  prepar- 
ing to  invade  Canada.  In  the  affray,  one  man  was 
killed,  and  later  when  one  McLeod  boasted  within  the 
State  of  New  York  of  his  participation  in  this  case,  he 
was  promptly  arrested  and  indicted  for  murder.  The 
British  authorities  demanded  his  release  on  the  ground 
that,  after  the  British  Government  had  accepted  full 

4See  P.  J.  Treat :  The  Early  Diplomatic  Relations  between 
the  United  States  and  Japan ;  Moore 's  International  Law  Di- 
gest, vol.  V,  p.  749-750. 

The  matter  of  the  obligation  of  the  territorial  sovereign  to 
pay  for  intervention  undertaken  by  way  of  cooperation  to 
establish  order  arose  also  in  connection  with  the  intervention 
of  the  United  States  in  Cuba,  1906-1909.  (See  Foreign  Rela- 
tions, 1911,  p.  132-135.)  The  Cuban  Government  contended 
that  it  was  not  obligated  to  reimburse  the  United  States  for 
the  expense  of  this  undertaking. 


6  INTERPOSITION 

responsibility  for  McLeod's  act,  any  discussion  of  the 
matter  must  be  conducted  between  the  governments 
concerned.  The  incident  was  settled  by  the  acquittal 
of  McLeod  and  the  enactment  of  federal  legislation 
to  enable  the  federal  authorities  thenceforth  to  release 
any  person  held  under  similar  circumstances.5 

In  the  wars  which  have  been  fought  over  and  about 
Chinese  territory,  the  weakness  of  the  Celestial  Em- 
pire has  given  rise  to  interesting  questions  of  self-help, 
as  when  Japan,  at  the  time  of  the  war  with  Russia  in 
]  904,  entered  the  harbor  of  Shanghai  and  destroyed  the 
Russian  vessel  Reshitelni,  which  had  taken  refuge 
there  (Westlake,  vol.  II,  p.  239).  Similarly,  in  1914, 
the  British  cruisers  destroyed  the  German  warship 
Dresden  when  lying  within  the  territorial  waters  of 
Chile  (Stowell  and  Munro:  Cases,  vol.  II,  p.  274-8). 
In  the  absence  of  any  adequate  authority  to  insure  the 
observance  of  neutrality,  it  is  difficult  to  condemn  these 
acts  without  qualification,  high-handed  as  they  unques- 
tionably were.  It  may,  however,  be  doubted  whether 
the  military  advantage  which  results  from  such  a 
course  offers  compensation  sufficient  to  balance  the 
shock  to  the  public  opinion  of  the  world. 

NATIONAL  CONTROL 

These,  then,  are  the  three  methods  of  procedure  for 
the  enforcement  of  international  law:  sovereignty; 
interposition;  and  self-help.  They  form  a  system  ef- 
fective throughout  the  inhabited  portions  of  the  globe. 
But  international  commerce  makes  use  of  the  sea  and 
bids  fair  soon  to  traverse  the  regions  of  the  air.  There 
are  no  officials  of  any  state  to  exercise  dominion  over 
the  high  seas  or  the  upper  air.  Hence  it  has  been 
found  necessary  to  supplement  territorial  sovereignty 

6See  Stowell  and  Munro,  vol.  I,  p.  121-3. 


by  a  projection  of  itself,  which  we  may  call  "  national 
control."  Through  national  control,  jurisdiction  is 
extended  over  vessels  traversing  sea  and  air.  The 
territorial  sovereign  from  whom  the  national  con- 
trol emanates  is  internationally  responsible  for  the 
observance  of  international  law  on  board  the  vessel 
that  flies  its  flag.  Should  any  state  fail  to  fulfil  this 
obligation,  the  difficulty  may  be  met  by  the  injured 
state  through  recourse  to  interposition  or  even  self- 
help,  as  discussed  above.6 

COOPEEATION 

International  law,  as  perpetuated  through  an  evolu- 
tion centuries  old,  has  other  methods  of  enforcement 
to  facilitate  in  certain  exceptional  circumstances  the 
workings  of  its  system  of  territorial  sovereignty.  One 
of  these  we  may  designate  as  "cooperation" — for  ex- 
ample, when  a  state,  acting  for  the  common  good,  pun- 
ishes a  pirate,  even  when  its  own  immediate  interests 
are  not  concerned.  Similarly,  in  fulfilment  of  their 
obligations  under  cooperation,  states  make  provision 
for  the  reciprocal  extradition  of  fugitives  from  jus- 
tice.7 


6The  case  of  the  Virginius  involved  this  principle.  See 
Stowell  and  Munro:  International  Cases,  vol.  I,  p.  368-371; 
Westlake :  International  Law,  vol.  I,  p.  171-3.  Cf .  Westlake, 
vol.  I,  p.  167,  for  discussion  of  the  nature  of  jurisdiction  on 
the  high  sea. 

7This  is  shown  by  the  following  extract  from  an  article  by 
Roy  Emerson  Curtis  on  "The  law  of  hostile  military  expe- 
ditions as  applied  by  the  United  States"  (American  Journal 
of  International  Law,  April,  1914,  p.  225-6)  : 

"The  Government  of  the  United  States  has  been  accus- 
tomed to  cooperate  with  foreign  governments  in  the  matter  of 
the  investigation  of  possible  violations  of  the  law,  and  occas- 
ionally it  has  supplied  information  of  importance  to  other 
states  in  warding  off  attacks  of  expeditions  which  this  govern- 
ment might  not  be  able  to  repress.  In  1884,  the  Canadian 


8  INTERPOSITION 

I  quote  from  Alpheus  H.  Snow  the  following  extract 
relative  to  the  suppression  of  the  slave  trade  as  a  good 
illustration  of  cooperation:  "In  1841  Great  Britain, 
Austria,  France,  Prussia,  and  Russia  entered  into  a 
treaty  open  to  all  the  powers  for  the  suppression  of  the 
slave  trade  by  granting  to  each  a  reciprocal  limited 
right  of  visitation,  search,  and  capture  of  ships  en- 
gaged in  the  slave  trade,  restricted  to  certain  identified 
naval  vessels,  carefully  regulated  and  confined  to  de- 
limited areas  of  the  ocean.  In  1842  the  United  States 
entered  into  a  similar  treaty  with  Great  Britain,  which 
was  supplanted  by  a  treaty  of  April  7,  1862,  for  the 
more  effectual  suppression  of  the  slave  trade."  (Al- 
pheus H.  Snow:  The  Question  of  Aborigines  in  the 
Law  and  Practice  of  Nations,  p.  97.) 

COMBINATION 

Practical  considerations  and  local  characteristics 
have  divided  the  world  into  the  independent  portions 
which  we  designate  as  states,  but  in  many  respects  the 

Government  sought  information  from  the  United  States  con- 
cerning the  basis  of  rumors  circulated  in  the  press  of  this 
country  that  a  Fenian  invasion  was  in  preparation.  The  au- 
thorities investigated  and  made  a  report  of  the  situation  to 
the  British  minister  (MS.  Notes  to  Great  Britain,  XIX:  438, 
Moore's  Digest,  vol.  VII,  p.  931).  The  raids  of  the  Garza 
bandits  on  the  Mexican  boundarj^  and  the  natural  obstacles 
to  preventing  them,  called  forth  the  suggestion  from  the  Mexi- 
can Government  that  it  would  be  well  for  the  War  Depart- 
ment of  each  country  to  inform  the  other  of  what  forces  it 
proposed  to  assign  to  preserve  the  peace  on  its  frontiers,  and 
what  system  it  proposed  to  adopt  for  the  attainment  of  this 
end,  so  that,  by  both  acting  in  concert,  the  purpose  of  both 
governments  might  be  more  easily  accomplished.  The  United 
States  concurred  in  this  suggestion."  (Foreign  Relations, 
1893,  p.  442,  and  p.  446-7.)  The  United  States  would  not  go 
to  the  extent  of  making  an  "alliance"  for  such  purposes. 
(Foreign  Relations,  1886,  p.  57.)  For  other  instances  of  co- 
operative action,  see  Stowell  and  Munro :  International  Cases, 
vol.  I,  chapters  IX,  X,  XI. 


REDRESS  9 

interests  of  humanity  are  one,  and  upon  occasion  the 
governments  of  the  independent  states  sink  their  jeal- 
ousies to  form  a  "combination"  for  the  regulation  of 
matters  beyond  the  scope  of  their  separate  action.  As 
an  example  we  may  take  the  international  commission 
established  to  govern  the  navigation  of  the  Danube. 
To  take  a  more  recent  example,  by  the  Treaty  of  Peace, 
Fiume  was  placed  under  international  control.  Simi- 
larly, international  unions,  such  as  the  Universal  Pos- 
tal Union  of  Berne,  are  constituted  to  govern  world 
relations  in  some  particular  matter.8 

§  2.    EEDBESS 

The  purpose  of  interposition  is  to  obtain  redress, 
by  which  is  meant  the  exaction  from  the  delinquent 
state  of  expiation  for  any  hurt  to  honor  and  prestige ; 
of  indemnification  for  material  injury,  and  of  reason- 
able security  against  the  repetition  of  the  offense.  The 
offending  state  is  punished  by  enforced  compliance 
with  these  requirements,  or  by  such  reasonable  severity 
as  the  circumstances  may  justify. 

The  idea  of  redress  was  primarily  based  upon  re- 
venge, and  it  is  necessary  to  remember  this  in  trying  to 
understand  the  history  of  the  evolution  of  all  legal  pro- 
cedure. 

To  understand  revenge  it  is  necessary  to  analyze  it 
into  its  component  parts.  The  first  of  these  is  the  im- 
pulse to  do  something  to  alleviate  the  physical  or  men- 
tal anguish  inflicted  by  the  injury — counter-injury  upon 
the  offender  being  virtually  instinctive,  as  is  shown  by 
the  presence  of  the  same  motives  among  animals.9 

8For  many  instances  of  international  combination  and  treaty 
stipulations  relative  thereto,  see  Annuaire  de  la  Vie  Inter- 
nationale, Brussels,  1908-1909;  and  Paul  S.  Reinsch:  Public 
International  Unions,  1911. 

9George  J.  Romanes  (Animal  Intelligence,  4  ed.,  London, 
1886,  p.  387-9),  relates  some  remarkable  instances  where  ele- 


10  INTERPOSITION 

An  impulse  so  widespread  and  so  persistent  must  ob- 
tain a  presumption  in  favor  of  its  usefulness  to  animal 
creation.  Even  the  weak  are  shielded  by  revenge  from 
a  large  measure  of  imposition  of  injustice  which  they 
would  otherwise  be  made  to  endure  from  more  power- 
ful neighbors.  One  is  reminded  of  the  legend  under  the 
thistle  on  the  Scottish  arms,  ''Nemo  me  impune  laces- 
set"  [Let  no  one  assail  me  with  impunity]. 

The  motive  which  we  have  been  discussing  is  evi- 
dently individual  and  selfish.  The  sweets  of  revenge 
assuage  the  feelings  of  the  individual  without  regard 
to  the  effect  his  revenge  may  have  upon  his  fellows. 
Perhaps  the  best  name  we  can  give  to  the  fulfilment  of 
this  subjective  craving  is  satisfaction. 

The  more  primitive  egotistical  craving  for  satisfac- 
tion, however  important  and  useful  in  preserving  re- 
spect for  the  personality  of  an  individual,  is  often  in 
conflict  with  the  general  interests  of  the  community, 
since  the  individual  in  his  pursuit  of  revenge  may  en- 
gender strife  weakening  to  the  society  of  which  he  is 
a  part.  This  evil  existed  in  the  case  of  family  and 
tribal  feuds,  in  which  the  avengers  were  constantly  em- 
broiling the  community  in  order  to  gratify  their  more 
selfish  lust  for  revenge.10  The  realization  of  this  dan- 
ger led  primitive  political  organizations  to  restrict  the 
free  play  of  this  passion  for  revengeful  satisfaction  by 
requiring  a  certain  form  of  procedure  for  its  applica- 


phants  have  avenged  themselves  upon  their  tormentors  after 
nursing  their  wrath  for  a  long  period.  He  also  gives  other  in- 
stances of  vindictiveness  in  animals.  See  Romanes's  index. 

10In  this  case,  the  desire  of  preserving  a  good  name  in  the 
tribe  also  had  a  part,  and  actuated  the  avengers,  but  satis- 
faction would  seem  to  have  been  the  element  most  difficult  to 
bring  into  harmony  with  the  requirements  of  public  safety. 


REDRESS  11 

tion,  and  by  prohibiting  acts  of  vengeance  at  certain 
times  and  places.11 

The  League  of  the  Iroquois  adopted  comprehensive 
regulations  to  eliminate  private  vengeance  between  the 
tribes  of  the  confederation.12  Modern  society  replaces 
vengeance  by  penal  statutes  and  the  regular  procedure 
of  its  law  courts.13  Police  officials  and  the  officers  of 
the  courts  take  appropriate  action  to  punish  the  trans- 

"The  Law  of  the  Talion,  as  set  forth  in  the  Mosaic  Law  and 
ancient  codes,  is  such  a  restriction.  The  codes  of  the  Germanic 
tribes  contain  elaborate  provisions  which  served  this  purpose. 
Sanctuaries  were  recognized  as  affording  asylum  to  fugitives 
from  the  wrath  of  the  avenger. 

12"The  wars  among  the  Indian  tribes  arise  almost  always 
from  individual  murders.  The  killing  of  a  tribesman  by  the 
members  of  another  community  concerns  his  whole  people. 
If  satisfaction  is  not  promptly  made,  war  follows,  as  a  matter 
of  course.*  The  founders  of  the  Iroquois  commonwealth  de- 
creed that  wars  for  this  cause  should  not  be  allowed  to  rise 
between  any  of  their  cantons.  On  this  point  a  special  charge 
was  given  to  the  members  of  the  Great  Council.  They  were 
enjoined  (in  the  figurative  language  employed  throughout  the 
book)  not  to  allow  the  murder  to  be  discussed  in  a  national 
assembly,  where  the  exasperation  of  the  young  men  might 
lead  to  mischief,  but  to  reserve  it  for  their  own  consideration ; 
and  they  were  required  as  soon  as  possible  to  bury  all  ani- 
mosities that  might  arise  from  it.  The  figure  employed  is  im- 
pressive. They  were  to  uproot  a  huge  pine-tree — the  well- 
known  emblem  of  their  League — disclosing  a  deep  cavity,  be- 
low which  an  underground  stream  would  be  swiftly  flowing. 
Into  this  current  they  were  to  cast  the  cause  of  trouble,  and 
then,  replacing  the  tree,  hide  the  mischief  forever  from  their 
people."  (Horatio  Hale:  The  Iroquois  Book  of  Rites,  Phila- 
delphia, 1883,  p.  68-9.) 

134 'At  length  the  pursuit  of  revenge  (Blutrach)  is  punished 
by  the  state,  and  what  was  once  a  sacred  duty  is  thereby  trans- 
formed into  a  crime. "  (Translated  from  Post:  Ethnologische 
Jurisprudenz,  p.  261.) 

*  [Bale's  note]  Relation,  of  1636,  p.  119.  "C'est  de  la  que 
naissent  les  guerres,  et  c'est  un  sujet  plus  que  suffisant  de 
prendre  les  armes  centre  quelque  village  quand  il  refuse  de 
satisfaire  par  les  presents  ordonnez,  pour  celuy  qui  vous 
aurait  tue  quelq'un  des  vostres. "  (Brebeuf,  on  the  Hurons.) 


12  INTERPOSITION 

gressor.  We  are  accustomed  to  regard  our  criminal 
procedure  as  intended  to  warn  evildoers  and  to  pre- 
serve society  from  their  misdeeds,  but  a  closer  exami- 
nation will  show  that  it  still  retains  many  indications 
of  its  original  purpose,  which  was  to  preserve  the  pub- 
lic peace.  For  example,  many  misdeeds  go  unpunished 
unless  the  wronged  individual  lodges  a  complaint  and 
calls  into  action  the  machinery  of  the  law.1*  Although 
punishment  by  the  courts  has  been  substituted  for  re- 
venge, in  some  countries  duels  are  still  in  vogue.  When 
we  turn  to  the  family  of  nations,  we  shall  find  that  the 
government  often  has  to  yield  to  popular  cries  for  re- 
venge.15 This  primitive  lust  for  revenge  is  still  an  im- 
portant factor  in  international  relations. 

In  municipal  affairs,  where  private  revenge  has  been 
so  largely  replaced  by  the  strong  arm  of  the  law,  re- 
venge retains  only  the  illicit  and  anti-social  function  of 
satisfying  individual  resentment.  The  avenger  acts  to 

14An  indication  of  this  is  perhaps  to  be  found  in  the  law  of 
libel,  according  to  which  the  truth  of  a  defamatory  statement 
is  no  defense  in  a  criminal  action.  (See  "Libel,"  Encyclo- 
paedia Britannica,  11  ed.,  vol.  3,  p.  537 ;  Hugh  Fraser :  The 
Law  of  Libel  and  Slander,  p.  233.) 

Another  indication  may  well  be  the  old  system  of  trial  by 
compurgators,  who  swore  to  their  belief  in  the  innocence  of  the 
accused.  (See  Beeves:  History  of  English  Law,  American 
edition,  1880,  vol.  I,  p.  205.  See  also  Century  Dictionary, 
under  "Compurgator.")  In  ancient  times,  the  compurga- 
tors would  evidently  bring  to  the  accused  something  more  than 
a  moral  support.  It  was  logical  in  view  of  this  system  of  com- 
purgators that  ancient  law  should  take  no  account  of  the 
casual  witness  who  might  have  chanced  to  see  the  act  under 
consideration. 

15In  his  electioneering  campaign,  Lloyd  George  gained  many 
adherents  by  promising  to  bring  the  Kaiser  to  trial  in  London, 
and  to  make  Germany  pay  to  the  last  penny.  See  J.  M. 
Keynes:  The  Economic  Consequences  of  the  Peace,  p.  139- 
145. 


REDEESS  13 

relieve  his  wounded  feelings  and  so  to  let  down  the 
tension  which  has  resulted  from  the  causal  act.16 

The  second  of  the  component  parts  of  revenge  is  in- 
timately associated  with  the  social  life  of  the  communi- 
ty and  is  the  expression  of  the  effort  to  reacquire  the 
loss  of  standing  (prestige)  which  has  resulted  from  the 
infliction  of  some  injury.  The  action  taken  under  this 
impulse  aims  to  reestablish  prestige.  The  word  which 
best  serves  to  designate  this  is  "rehabilitation."17 
These  two  purposes,  satisfaction  and  rehabilitation, 
are  so  entangled  in  revengeful  action  that  it  is  very 
difficult  to  separate  them  in  any  particular  instance. 
They  are,  nevertheless,  quite  distinct. 

PRESTIGE 

In  primitive  communities  the  organization  to  mete 
out  justice  was  naturally  rudimentary,  and  revenge 
was  relied  upon  as  the  best  protection  of  the  weak  from 
the  iniquities  of  the  strong.  The  subconscious  reali- 
zation of  social  advantage  would  lead  the  community 
to  approve  and  to  urge  the  avenger  on.  The  man  who 
did  not  avenge  an  injury  would  lose  the  respect  of  the 
community.  He  would  lose  standing,  that  is  prestige. 
Whenever  there  is  a  loss  of  prestige,  the  individual 
who  has  suffered  will  be  stimulated  to  action  adequate 
to  regain  his  position  in  the  society  in  which  he  lives. 
When  an  individual  loses  a  part  of  the  good  opinion 
which  he  has  previously  enjoyed,  he  is  hurt  in  his  own 
self-esteem.  Because  of  his  social  instincts  and  nur- 
ture he  cannot  avoid  looking  upon  himself  in  the  light 

16It  is  recognized  as  a  device  of  practical  psychology  to  al- 
low a  dangerous  individual  to  enjoy  a  cheap  revenge  in  order 
to  drain  off  his  venom  and  prevent  some  more  pernicious  mani- 
festation. 

17Among  the  meanings  of  rehabilitate,  the  Century  gives: 
"To  reestablish  in  the  esteem  of  others  or  in  social  position 
lost  by  disgrace;  restore  to  public  respect." 


14  INTERPOSITION 

of  the  public  opinion  of  the  community,  and  he  is  cer- 
tain to  incur  the  condemnation  of  his  fellows  if  he  al- 
lows an  insult  to  pass  unrequited.18 

Governments,  like  individuals,  suffer  directly  from 
any  affront  to  their  honor  which  means  a  loss  of  pres- 
tige. A  nation's  strength  depends  upon  many  factors, 
amongst  which  is  prestige.  It  is  not  possible  accurate- 
ly to  estimate  the  number  or  relative  importance  of 
these  factors.  Nevertheless,  this  prestige  of  a  nation 
is,  from  a  practical  point  of  view,  among  its  most 
precious  possessions.  When  international  obligations 
are  entered  into,  a  nation's  prestige  carries  conviction 
that  it  will  fulfil  them  faithfully.  The  rate  of  interest 
it  has  to  pay  to  individuals  for  loans  depends  in  great 
part  upon  the  general  confidence  in  the  intention  and 
ability  of  the  government  to  meet  the  payments  when 
due.  Prestige  lends  influence  to  any  diplomatic  action 
in  which  a  state  may  be  engaged.  The  glory  of  national 
prestige  is  reflected  in  a  curious  manner  over  every  in- 
dividual of  the  nation,  and  contributes  to  his  success  in 
all  parts  of  the  world.  The  prestige  of  a  nation  in- 
spires every  national  with  an  inward  feeling  of  pride 
in  the  association  of  his  fellow  nationals  under  an  hon- 


18In  Oriental  countries,  individual  loss  of  prestige  is  called 
losing  face,  and  it  is  considered  a  most  serious  matter,  as  the 
following  incident  from  the  Life  of  Tennyson  indicates :  " . . 
The  conversation  then  reverted  to  China.  My  father  [Lord 
Tennyson]  observed  that  he  thought  the  Chinese,  who  live  on 
a  very  little,  could  imitate  everything,  and  had  no  fear  of 
death,  would,  not  long  hence,  under  good  leadership  be  a  great 
power  in  the  world.  Lord  Napier  agreed  with  him,  and  said 
that  their  contempt  of  death  had  on  one  occasion  come  pain- 
fully home  to  himself.  A  whole  family  had  drowned  them- 
selves in  a  well,  whether  out  of  pique  or  fear  he  did  not  know, 
because  he  himself  had  refused  to  accept  a  dog  which  he  had 
petted  and  they  had  offered  to  him.  'No  incident,'  he  added, 
'ever  impressed  me  with  so  much  horror.'  '  Hallam  Tenny- 
son :  Memoirs  of  Lord  Tennyson,  1898,  vol.  II,  p.  328.  Cf .  A. 
H.  Smith:  Chinese  Characteristics,  chap.  I,  "Face.") 


REDRESS  15 

ored  government  and  gives  him  an  added  self-confi- 
dence which  also  contributes  directly  to  his  success. 

The  elements  which  go  to  make  up  the  estimate  of 
prestige  in  any  particular  nation  must  vary.  Individu- 
als more  highly  developed  intellectually  and  socially 
will  admire  the  administrative  efficiency  of  the  govern- 
mental machinery  of  the  state,  the  faithfulness  with 
which  it  meets  its  international  obligations  and  assists 
in  the  spread  of  enlightened  policies  capable  of  substi- 
tuting bonds  of  union  between  the  different  communi- 
ties of  the  world  in  place  of  narrow  race  or  national 
antagonisms.  They  will  rejoice  in  anything  that  con- 
tributes to  the  ability  of  such  a  state  to  expand  its  in- 
fluence in  its  work  of  civilization  and  general  enlight- 
ment. 

The  ignorant  individual  makes  his  estimate  of  the 
prestige  of  another  country  principally  from  the  extent 
of  its  territory  upon  the  map,  and  its  military  prowess, 
as  shown  in  recent  wars.  He  also  take~  into  account 
the  number  and  wealth  of  the  individuals  of  the  state 
with  whom  he  comes  in  contact.  Of  course,  many  other 
factors  enter  into  this  estimate,  such  as  popular  songs, 
histories,  pictures,  or  legends  relating  to  the  country. 
Upon  such  a  basis  will  be  formed  that  popular  respect 
and  approval  which  constitutes  national  prestige  in 
other  countries.  Of  all  these  factors  of  national  pres- 
tige, military  strength  is  by  far  the  most  important. 
The  possession  of  this  military  strength  makes  it  pos- 
sible to  prevent  the  forcible  violation  of  the  nation's 
rights,  and  the  general  understanding  that  any  such 
attempt  would  be  quickly  resented  and  effectively  re- 
sisted is,  under  present  conditions,  the  best  insurance 
of  the  peaceful  enjoyment  of  a  nation's  rights.  The 
complexity  of  international  relations  makes  it  difficult 
for  the  whole  body  of  citizens  to  know  what  the  rights 
of  a  nation  are  under  international  law,  and  to  realize 


16  INTERPOSITION 

when  these  rights  have  been  violated,  but  everyone 
understands  that  his  state  has  a  right  to  a  courteous 
treatment  from  every  other  state,  and  any  failure  in 
this  respect  is  immediately  resented  as  an  insult.  If 
redress  is  not  exacted  for  any  lapse  from  courtesy,  all 
perceive  that  the  force  looked  upon  as  an  insurance 
against  just  such  an  occurrence  was  in  reality  para- 
lyzed, and  part  of  the  prestige  of  the  insulted  state  is 
lost.  Throughout  the  world  will  prevail  a  feeling  of 
contempt  for  the  pusillanimous  conduct  of  the  state 
which  swallowed  the  insult.  The  ensmng  loss  of  pres- 
tige will  affect  the  state  in  the  subsequent  carrying  out 
of  its  foreign  policy  and  hamper  its  nationals  through- 
out the  world.19  The  case  of  the  Trent  and  the  Fashoda 
incident  (1898)  illustrate  the  importance  which  the 
most  advanced  states  attach  to  the  maintenance  of 
their  national  prestige.  In  the  case  of  the  Trent,  Presi- 

19It  is  not  perhaps  the  failure  to  punish  the  offender  which 
causes  the  loss  of  prestige,  so  much  as  the  belief  that  the  fail- 
ure to  punish  indicates  a  weakness  of  physical  strength  or  of 
character.  When  the  capacity  to  smite  is  evident,  but  the 
blow  magnanimously  withheld,  the  effect  upon  the  imagina- 
tion of  the  offender  may  perhaps  be  greater. 

President  David  P.  Barrows  of  the  University  of  California, 
in  his  ' '  Decade  of  American  Government  in  the  Philippines, ' ' 
p.  xiii,  notes  that  the  Philippine  Insurrection  was  brought  to 

an  end  in  the  spring  and  summer  of  1901,  " when  the 

Filipino  'zone  commanders,'  who  for  many  months  had  been 
exercising  practically  independent  authority  in  the  different 
provinces  of  the  Archipelago,  were  captured  or  forced  to  sur- 
render. They  were  all  promptly  paroled  and  allowed  to  re- 
turn to  their  homes.  Not  one  of  these  revolutionary  leaders 
ever  broke  his  parole  or  took  up  arms  against  the  United 
States." 

In  the  course  of  a  discussion  which  I  had  with  President 
Barrows,  relative  to  the  necessity  for  the  use  of  force  to  sup- 
press sedition,  he  referred  to  the  magnanimous  treatment 
accorded  the  Filipinos,  and  thought  they  were  more  impressed 
by  the  tremendous  power  of  the  United  States  expressed  in 
this  way,  than  they  would  have  been  by  severe  treatment. 


KEDRESS  17 

dent  Lincoln  and  the  Prince  Consort  did  much  to  avoid 
popular  irritation  by  toning  down  the  language  of  the 
diplomatic  correspondence,  but  war  would  probably 
have  resulted  had  it  not  been  for  the  happy  cooperation 
of  Secretary  Seward  and  Lord  Lyons  to  avoid  any 
action  hurtful  to  American  prestige.  (See  Newton's 
Life  of  Lord  Lyons,  vol.  I,  p.  60-66). 

A  careful  reading  of  the  correspondence  relative  to 
the  Fashoda  incident  indicates  that  peace  was  pre- 
served only  because  France  was  allowed  to  make  a 
retreat  which  did  not  seem  too  humiliating. 

This  appears  from  the  dispatch  of  M.  Delcasse,  Min- 
ister of  Foreign  Affairs,  to  the  French  representative 
at  London,  October  3,  1898,  in  which  he  quotes  ver- 
batim his  remarks  to  the  British  Ambassador,  as  fol- 
lows: 

"We  were  the  first,"  said  I,  "to  reach  Fashoda  and 
we  took  it  from  the  barbarians  from  whom  you,  two 
months  later,  took  Khartum.  To  ask  of  us  to  evacuate 
Fashoda  before  entering  into  any  discussion  would  be 
equivalent  to  the  presentation  of  an  ultimatum.  That 
being  so,  who  that  knows  France  could  doubt  our  an- 
swer? You  are  not  ignorant  of  my  desire  for  an  un- 
derstanding with  England,  an  understanding  as  advan- 
tageous for  England  as  for  France,  nor  are  my  con- 
ciliatory sentiments  unknown  to  you.  I  state  them  to 
you  thus  freely  because  I  know,  and  because  you,  your- 
self, are  certain  that  they  will  not  lead  me  to  exceed  the 
limit  set  by  national  honor.  To  reach  an  understand- 
ing between  the  two  countries,  I  am  able  to  make  sacri- 
fices of  material  interests,  but  in  my  hands  the  national 
honor  shall  rest  secure.  There  is  not  anyone  who,  in 
my  position,  will  employ  a  different  language,  and  per- 
haps another  might  not  be  as  well  disposed. '  )2° 

20Extract  translated  from  French  Yellow  Book,  Documents 
Diplomatiques.     Affaires  du  Haut-nil  et  du  Bahr-el-Ghazan, 
2 


18  INTERPOSITION 

Roosevelt,  in  a  letter  of  August  14,  1906,  to  Henry 
White,  then  Ambassador  at  Rome,  said  of  the  Kaiser 
(Scribner's,  April,  1920,  p.  394-5) :  "Moreover,  where 
I  have  forced  him  to  give  way  I  have  been  sedulously 
anxious  to  build  a  bridge  of  gold  for  him,  and  to  give 
him  the  satisfaction  of  feeling  that  his  dignity  and 
reputation  in  the  face  of  the  world  were  safe. ' ' 

Norman  Angell,  in  his  interesting  and  stimulating 
book,  "Europe's  Optical  Illusion,"  has  marshalled 
arguments  to  prove  that  a  victor  in  a  modern  war — as, 
for  instance,  Germany  after  the  Franco-German  War — 
was,  he  believes,  powerless  to  reap  any  economic  ad- 
vantage from  the  conquest.  He  points  out  that  a  civil- 
ized state  cannot  exterminate  the  inhabitants  of  a  con- 
quered territory  and  operate  it  for  the  profit  of  its 
nationals,  and  he  makes  a  good  case  to  show  that  the 
burdens  resulting  from  a  heavy  war  indemnity  are  felt 
more  by  the  state  that  receives  than  by  the  state  that 
pays.  But  he  entirely  leaves  out  of  account  the  great — 
the  vastly  important  factor  of  national  prestige.  Ger- 
many's victory  in  the  Franco-German  War  brought  her 
a  great  increase  in  national  prestige.  It  allowed  Prus- 
sia to  secure  the  lead  of  the  other  German  states  and 
gave  to  Bismarck's  diplomacy  a  strong  support.  It  in- 
spired the  German  nation  with  a  confidence  in  itself, 
the  results  of  which  are  shown  in  its  growth,  organiza- 
tion, and  industrial  development.  Wherever  Germans 
have  gone  they  have  carried  additional  confidence  and 
received  additional  marks  of  respect  because  of  their 
victory  in  1870.  The  intellectual  classes  of  the  world 
were  indirectly  influenced  by  the  German  success  and 
flocked  to  her  universities,  while  France,  with  all  she 

1897-8,  p.  16;  cf.  also  Parliamentary  Papers,  1898,  Egypt. 
[C.  9054]  [C.  9055].  Under  cover  of  a  general  settlement  of 
their  frontiers  in  Northern  Africa,  France  withdrew  her  claim 
to  Fashoda. 


REDRESS  19 

had  to  teach,  was  for  a  time  almost  ignored.  It  would 
be  hard  to  find  any  other  explanation  or  any  justifica- 
tion for  the  sudden  collapse  of  French  prestige,  for 
France  was  then  what  she  has  recently  shown  herself  to 
be;  but  she  suffered  a  great  loss  of  prestige,  and 
French  influence  was  dimmed  for  a  generation.  In  the 
course  of  years  there  came  about  a  gradual  readjust- 
ment of  political  vision  and  intellectual  values,  until,  in 
her  glorious  resistance  to  German  aggression,  France 
has  regained  the  relative  position  in  world  influence 
which  she  merits.  It  is  impossible  to  estimate  in  dollars 
and  cents  what  those  years  of  prestige  meant  to  Ger- 
many. Similarly,  it  would  be  impossible  to  estimate  for 
Japan  the  value  of  the  prestige  she  gained  through  her 
victory  over  Russia.  We  are  able  to  give  one  concrete 
instance — she  has  saved  millions  of  dollars  in  her  inter- 
est charges  by  refunding  her  debt.  Though  poor  and 
burdened  by  taxation,  she  could,  after  her  war  with 
Russia,  borrow  upon  better  terms  than  she  could  be- 
fore. In  the  course  of  the  succeeding  years  the  sum 
total  of  the  gain  from  the  prestige  consequent  upon  a 
successful  conflict  may  be  many  times  greater  for  the 
victor  than  the  cost  of  the  loss  of  life  and  property, 
even  including  such  indirect  injury  as  results  from  ar- 
rested development  caused  by  a  prolonged  war. 

The  maintenance  of  a  country's  honor  means  the 
maintenance  of  its  prestige,  and  even  from  a  material 
point  of  view,  honor  may  be  considered  as  its  most 
precious  possession.  This  does  not  mean  that  a  hasty 
recourse  to  force  and  a  brutal  castigation  need  be  un- 
dertaken upon  slight  provocation.21 

"Professor  T.  E.  Holland  (Jurisprudence,  4th  ed.,  1888, 
p.  327-8)  makes  "Reputation"  one  of  what  he  calls  "ante- 
cedent international  rights,"  and  says  relative  thereto,  "Of 
the  right  to  a  good  name,  it  has  been  well  said  that  '  the  glory 
of  a  nation  is  intimately  connected  with  its  power,  of  which 


20  INTERPOSITION 

In  exceptional  instances,  public  opinion  may  approve 
of  failure  to  exact  retribution.  If  the  offending  state 
is  evidently  at  the  mercy  of  a  stronger  aggrieved  state, 
an  isolated  offense  allowed  to  pass  unavenged  will  ap- 
pear magnanimous  and  the  public  will  often  admire  the 
self-control  which  the  stronger  evinced.  This  noble 
sentiment  is  sometimes  carried  to  an  extreme.  There 
is  a  tendency  on  the  part  of  impractical  idealists  to  be 
too  ready  to  consider  the  failure  to  exact  redress  as 
magnanimity.  Magnanimity  is  out  of  place  when  it 
is  likely  to  be  mistaken  for  fear  or  weakness  and  en- 
danger the  security  of  the  community  through  repe- 
tition of  the  offense. 

An  individual,  it  has  been  said,  seeks  redress  to  re- 
cover the  loss  of  self-esteem — in  other  words,  his  es- 
timate of  what  he  has  lost  in  the  opinion  of  the  com- 
munity.22 To  regain  his  own  self-esteem,  he  must  be- 


it  is  a  considerable  part.  It  is  this  distinction  which  attracts 
to  it  the  consideration  of  other  peoples,  which  makes  it  respec- 
table in  the  eyes  of  its  neighbors.  A  nation  the  reputation  of 
which  is  well  established,  and  especially  one  the  glory  of  which 
is  striking,  finds  itself  sought  by  all  sovereigns.  They  desire 
its  friendship  and  fear  to  offend  it.  Its  friends,  and  those  who 
wish  to  become  such,  favor  its  enterprises,  and  its  detractors 
do  not  venture  to  show  their  ill-will. '  ' 

Sir  James  Macintosh  has  well  said :  "A  nation  may  justly 
make  war  for  the  honor  of  her  flag,  or  for  dominion  over  a 
rock,  if  the  one  be  insulted  and  the  other  be  unjustly  invaded ; 
because  acquiescence  in  the  outrage  or  the  wrong  may  lower 
her  reputation,  and  thereby  lessen  her  safety."  (Macintosh: 
History  of  the  Revolution  of  1688,  London,  1834,  p.  301.) 

"The  estimate  of  the  community  in  a  large  number  of  cases 
gives  the  average  extent  of  the  retaliation  or  revenge,  which 
must  be  inflicted  to  achieve  rehabilitation,  but  in  any  par- 
ticular case,  the  individual  will  be  guided  necessarily  by  his 
own  subjective  view  of  what  is  requisite.  If  he  exacts  an  ex- 
aggerated revenge,  counter-retaliation  and  the  condemnation 
of  his  fellows  will  act  as  a  check  upon  similar  offenses  in  the 
future.  Instead  of  rehabilitation,  his  excesses  will  cause  him 
a  still  further  loss  of  prestige. 


EXPIATION  21 

lieve  that  he  has  recovered  the  former  good  opinion  in 
which  he  was  held  by  his  fellows.  What  has  been  said 
about  individuals  in  a  community  is  in  the  main  true 
of  nations.  An  intentional  injury  or  insult  offered  to 
a  state  or  to  those  whom  the  state  is  bound  to  protect 
affects  the  self-esteem  of  the  entire  population  because 
they  feel  that  the  respect  in  which  their  state  was  held 
by  others  is  diminished  as  long  as  such  an  affront  is 
submitted  to. 

After  this  short  account  of  the  origin  of  redress  from 
revenge  and  the  force  of  the  motive  to  secure  rehabili- 
tation for  the  loss  of  prestige,  we  shall  be  better  able 
to  take  up  the  consideration  of  the  nature  of  expiation, 
the  first  of  the  three  purposes  comprehended  in  action 
taken  to  secure  redress.  The  other  two,  as  we  have 
said  above,  were  indemnification  for  material  injury, 
and  security  against  a  repetition  of  the  offense. 

§  3.    EXPIATION 

When  an  international  offense  has  caused  material 
loss,  obvious  and  practical  considerations  impel  the 
injured  state  to  insist  upon  an  adequate  indemnity. 
But  the  injurious  acts  may  also  have  caused  a  hurt  to 
national  honor  or  prestige ;  in  some  instances,  injuries 
of  this  nature  may  be  the  only  issue  involved. 

A  hurt  to  national  honor  and  prestige  generally  re- 
sults from  an  intentional  disregard  of  rights,  and  may 
be  actuated  by  one  of  the  following  motives : 

1st.  The  desire  to  pick  a  quarrel. 

2nd.  The  belief  that  the  injured  state  is  too  pusil- 
lanimous to  resent  the  wrong  done  it. 

3rd.  The  belief  that  the  injured  state  is  not  strong 
enough  to  retaliate. 

If  the  motive  is  to  pick  a  quarrel,  experience  shows 
that  there  is  usually  little  advantage  in  delaying  the 


22  INTERPOSITION 

retaliatory  action  which  the  injury  warrants,  and  the 
sentiment  of  mankind  still  applauds  the  prompt  taking 
up  of  the  defiance.  Even  if  there  be  superior  consider- 
ations which  should  justify  a  refusal  to  engage  in  the 
conflict,  public  opinion  will  surely  register  its  disap- 
proval of  the  abnegation  and  the  state  will,  from  a  pop- 
ular view-point,  suffer  a  loss  of  honor  and  prestige. 

The  same  consequences  will  result  in  those  instances 
when  the  failure  to  exact  redress  is  due  to  the  craven 
spirit  upon  which  the  injuring  state  counted. 

As  regards  the  third  class  of  instances,  when  the  in- 
sulted state  is  really  greatly  inferior  in  strength,  the 
failure  to  take  up  arms  for  redress  will  not  necessarily 
result  in  a  loss  of  honor.  It  will,  however,  make  very 
clear  how  inferior  is  the  military  strength  of  the  in- 
sulted state  and  its  political  prestige  will  suffer.23 

Sir  Edward  Creasy  has  well  expressed  this:  "A 
state  has,"  he  says,  "the  right  to  repel  and  to  exact 
redress  for  injuries  to  its  honor.  This  also  is  a  right 
of  self-preservation.  For,  among  nations,  as  among 
individuals,  those,  who  tamely  submit  to  insult,  will  be 
sure  to  have  insults  and  outrages  heaped  upon  them 
until  the  sense  of  intolerable  wrong  drives  them  into 
physical  contest  under  probably  disadvantageous  cir- 
cumstances, and  after  they  have  deprived  themselves 
of  that  general  sympathy  which  manly  and  consistent 
conduct  will  always  obtain  for  even  the  unsuccessful 
brave.  Without  doubt  vainglory  and  bluster  are  as 
detestable  in  a  nation  as  in  a  private  person.  True 
honor  consists  in  combining  self-respect  with  respect 

23In  those  instances  where  the  insulted  state  is  conspicu- 
ously superior  in  strength  to  the  insulter,  a  failure  to  exact 
redress  may  enhance  prestige.  This  will  be  the  case  when,  in 
the  opinion  of  the  public,  such  abnegation  takes  on  the  aspect 
of  magnanimity. 


EXPIATION  23 

for  the  feelings  and  rights  of  others."24  (Sir  Edward 
S.  Creasy :  First  Platform  of  International  Law,  Lon- 
don, 1876,  p.  153). 

To  prevent  the  loss  of  honor  and  prestige,  the  in- 
jured state  must  demonstrate  that  it  has  brought  the 
insulter  to  book,  and  thereby  rehabilitated  itself.  If 
the  insulter  offers  resistance,  his  complete  subjection 
by  the  sword  would  be  the  necessary  consequence ;  but, 
in  general,  matters  do  not  proceed  to  this  length.  The 
insult  given  in  hot  blood  is  repented  of,  or  the  certainty 
that  the  injured  state  will  marshal  a  superior  force  for 
requital  begets  fear  and  counsels  conciliation.  Or  it 
may  be  that  the  lowering  clouds  of  war  make  the  con- 
temner  afraid  to  engage  in  a  controversy  which  will 
offer  his  rivals  an  undisturbed  opportunity  to  advance 
their  designs.  In  many  instances  an  innate  sense  of 
justice  and  of  self-respect  will  lead  the  wrong-doer  to 
recognize  as  unworthy  any  effort  to  sustain  his  act. 
It  then  becomes  the  aim  of  the  provoking  state  to  avoid 
the  consequences  of  its  act,  and'to  arrest  the  measure 
of  redress.  The  accomplishment  of  this  purpose  is 
known  as  "expiation" — that  is  the  acknowledgment 
of  the  wrong  done  by  acts  expressing  contrition.25 

24Creasy  gives  the  following  supplementary  note: 

"The  single  Greek  word  AW&S  simply  and  eloquently  ex- 
presses all  this,  and  much  more. 

"In  making  serious  contumely  to  honor  a  cause  for  hostile 
proceedings,  international  law  follows  the  Koman  civil  law, 
according  to  which, '  Dignitas  quoque  hominis  in  jure  consider- 
atur,'  and  'Injuria'  in  the  form  of  contumely  is  described  as 
'Injuria  non  bonis  damnum  factum  intelligitur,  sed  contra 
personse  dignitatem.' — See  Warnkoenig :  Institutiones  Juris 
Romani  Privati,  §§  126  and  986." 

26The  significance  of  these  acts  is  the  ceremonial  placing  of 
the  offender  in  the  position  where  he  would  ultimately  be  when 
justly  vanquished  by  the  wronged  state.  The  ceremony  by 
expressing  this  situation  proclaims  to  the  world  that  the  result 
may  be  considered  to  have  taken  place.  Both  parties  thereby 
save  a  futile  expenditure  of  blood  and  treasure. 


24  INTERPOSITION 

Expiation  may  be  expressed  in  various  ways,  ac- 
cording to  the  nature  of  the  offense  and  the  situation  of 
the  parties. 

International  rehabilitation,  to  be  adequate,  must 
meet  the  views  of  international  society.  In  practice, 
when  there  has  been  any  hurt  to  honor  or  prestige,  re- 
habilitation is  usually  sought  through  the  exaction  of 
an  apology.  A  good  instance  of  an  apology  is  found  in 
the  following  dispatch  of  February  6, 1858,  from  Count 
Walewski,  the  French  Minister  of  Foreign  Affairs,  to 
Count  de  Persigny  at  London.  Notwithstanding  the 
courteous  tone  of  the  dispatch,  feeling  ran  high  in 
France  against  England  because  of  the  asylum  she 
afforded  for  political  agitators. 

Lord  Palmerston  had  been  turned  out  of  power  when 
he  attempted  to  secure  the  adoption  of  legislation 
which  would  prevent  Great  Britain  from  offering  so 
unrestricted  an  asylum  to  political  conspirators 
against  neighboring  sovereigns,  and  when  the  French 
Government  saw  the  consequences  of  this  attempt  and 
the  outburst  of  national  anger,  they  were  willing  to 
drop  the  matter  and  to  help  Disraeli,  who  had  succeed- 
ed Lord  Palmerston,  by  sending  the  conciliatory  dis- 
patch which  arrived  in  time  to  be  read  to  the  House  of 
Commons  on  its  reassembling  on  March  12,  after  ad- 
journment.26 As  translated,  the  dispatch  reads  as  fol- 
lows : 

"M.  le  Comte:  The  account  you  give  me  of  the  effect 
produced  in  England  by  the  insertion  on  the  Moniteur 

26See  Buckle's  Life  of  Disraeli,  vol.  IV,  p.  123. 

John  Stuart  Mill  writes  Giuseppe  Mazzini,  February  21, 
1858  (Letters,  vol.  I,  p.  201),  "  . .  .When  I  began  writing  to 
you  I  thought  that  this  country  was  meanly  allowing  itself  to 
be  made  an  appendage  to  Louis  Bonaparte's  police  for  the 
purpose  of  hunting  down  all  foreigners  (and  indeed  English 
too)  who  have  virtue  enough  to  be  his  avowed  enemies.  But 
it  appears  we  are  to  be  spared  this  ignominy ;  and  such  is  the 


EXPIATION  25 

of  certain  addresses  from  the  army,  has  not  escaped 
my  attention,  and  I  have  made  a  report  of  it  to  the 
Emperor.  You  are  aware  of  the  sentiments  by  which 
we  have  been  influenced  in  the  steps  we  have  adopted 
with  Her  Britannic  Majesty's  Government  on  the  oc- 
casion of  the  attack  of  the  14th  of  January  [attempted 
assassination  of  Napoleon  III],  and  of  the  care  we  have 
taken,  in  applying  for  its  concurrence,  to  avoid  every- 
thing that  could  bear  the  appearance  of  pressure  on 
our  part.  All  our  communications  manifest  our  con- 
fidence in  its  sincerity  ('loyaute'),  and  our  deference 
for  the  initiative  being  taken  by  it;  and  if,  in  the  en- 
thusiastic manifestations  of  the  devotion  of  the  army, 
words  have  possibly  been  inserted  which  have  seemed 
in  England  to  be  characterized  by  a  different  sentiment, 
they  are  too  much  opposed  to  the  language  which  the 
Emperor's  Government  has  not  ceased  to  hold  that  of 
Her  Britannic  Majesty,  for  it  to  be  possible  to  attribute 
them  to  anything  else  than  inadvertence,  caused  by  the 
number  of  those  addresses.  The  Emperor  enjoins  you 
to  say  to  Lord  Clarendon  how  much  he  regrets  it. 

"I  authorize  you  to  give  a  copy  of  this  dispatch  to 
the  Principal  Secretary  of  State  for  Foreign  Affairs." 
(Parliamentary  Papers,  1857-8,  vol.  60,  p.  127  [2317]). 
In  other  instances,  an  apology  is  incorporated  in  a 
treaty:  Great  Britain,  in  Article  I  of  the  Treaty  of 
Washington  (May  8,  1871),  agreeing  to  submit  the 
Alabama  claims  to  arbitration,  expressed  her  regret 
"for  the  escape,  under  whatever  circumstances,  of  the 
Alabama  and  other  vessels  from  British  ports  and  for 

state  of  the  world  ten  years  after  1848  that  even  this  must  be 
felt  as  a  great  victory." 

To  Pasquale  Villari,  March  9,  1858,  he  writes  in  similar 
vein,  and  says  the  Palmerston  Ministry  was  overthrown  be- 
cause of  its  attempt  to  drag  the  nation  in  the  mud  and  make 
it  a  branch  of  the  French  police  (Ibid,  vol.  I,  p.  202-3). 


26  INTERPOSITION 

the  depredations  committed  by  those  vessels."  This 
expression  of  regret  is  very  remarkable  for  the  clear- 
ness with  which  it  is  stated,  and  since  this  apology  and 
agreement  to  arbitrate  avoided  a  serious  conflict  with 
the  United  States,  it  is  most  honorable  to  Great 
Britain. 

The  general  recognition  of  the  obligation  to  apolo- 
gize for  any  affront  to  a  foreign  state  or  its  represen- 
tatives is  illustrated  by  the  following  extract  from  the 
report  of  an  incident  from  Wadowice,  Galicia,  in  the 
Westminster  Gazette,  February  19, 1908 : 

*  *  Judgment  was  pronounced  to-day  in  the  trial,  which 
began  in  the  District  Court  here  yesterday,  of  Wanda 
Dobrodzicka,  a  young  Russian  woman  charged  with 
having  thrown  a  bomb  at  General  Skallon,  Governor- 
General  of  Warsaw,  on  May  18th,  1906. 

"The  indictment  set  forth  the  existence  of  a  very 
skilfully  devised  plot  to  kill  the  Governor-General.  As 
he  very  seldom  left  the  castle  it  was  necessary  to  do 
something  to  compel  him  to  come  out.  Accordingly 
one  of  the  conspirators,  in  the  uniform  of  a  Eussian 
officer,  grossly  insulted  the  German  Vice-Consul.  It 
became  necessary,  therefore,  for  the  Governor-General 
to  pay  a  personal  visit  to  the  Vice-Consul  to  express 
his  regret,  officially,  at  such  an  occurrence.  This  was 
exactly  what  the  conspirators  had  reckoned  upon,  and 
they  laid  their  plans  accordingly.  Wanda  Dobrodzicka, 
who  was  only  twenty  years  of  age,  was,  it  was  alleged, 
entrusted  with  the  task  of  killing  the  Governor.  Ac- 
cording to  the  prosecution,  she  took  up  her  position  on 
a  balcony  which  he  would  pass,  and  when  his  carriage 
came  she  hurled  a  bomb  at  it.  The  bomb,  however, 
failed  to  explode."  (Oppenheim:  International  Inci- 
dents, p.  43-4). 

An  apology  freely  offered  in  recognition  of  a  wrong 


EXPIATION  27 

which  is  regretted  does  honor  to  him  who  makes  it,  no 
less  than  to  him  who  receives  the  amend. 

SALUTE  OF  THE  FLAG 

Another  form  of  honorable  amend  is  the  salute  of 
the  national  flag.  From  an  official  source,  we  take  the 
following  extract  from  a  letter  of  July  21,  1866,  ad- 
dressed by  the  commander  of  the  U.  S.  S.  Nipsic  to  the 
Brazilian  Vice-President  in  the  port  of  Bahia  where 
the  seizure  of  the  Florida  had  unjustifiably  been  made 
in  violation  of  Brazilian  sovereignty  and  neutrality : 

"Sir;  The  undersigned,  commanding  the  steamer 
Nipsic,  has  the  honor  to  inform  your  excellency  of  his 
arrival  in  this  port,  and  to  make  known  to  your  excel- 
lency that  the  principal  object  of  the  visit  of  the  un- 
dersigned at  this  time  is  to  carry  out  the  instruction 
of  the  government  of  the  United  States  to  fire  a  salute 
of  twenty-one  (21)  guns  to  the  flag  of  Brazil,  and  thus 
to  make  the  'amende  honorable'  for  an  offense  com- 
mitted by  a  United  States  officer,  which  was  at  once 
disavowed  by  the  government  of  the  United  States. 

"Ever  prompt  to  do  justice,  the  government  of  the 
undersigned,  so  long  ago  as  October  28, 1865,  issued  the 
above  instructions,  but  which,  from  some  irregularity, 
were  sent  to  Valparaiso,  and  were  only  received  by  the 
commander-in-chief  of  the  United  States  squadron  on 
this  station  on  the  arrival  of  the  late  mail. 

* '  Therefore,  if  it  be  agreeable  to  your  excellency,  the 
undersigned  will  hoist  the  Brazilian  flag  at  the  fore- 
mast-head of  this  vessel,  and  fire  a  salute  of  twenty-one 
guns,  at  noon  to-morrow,  the  23rd  instant. 

' l  The  undersigned,  in  executing  this  duty,  begs  leave 
to  express  to  your  excellency  the  undersigned's  sincere 
hope,  that  with  the  dying  echoes  of  the  last  gun  will 
also  expire  any  unkind  feelings  that  may  exist  in  Bra- 


28  INTERPOSITION 

zil  from  the  cause  which  has  given  rise  to  this  cere- 
monial. ' ' 
In  his  answer  of  the  same  date,  the  President  of  the 

Province  said :  '  * and  believing  in  the  sentiments 

which  Mr.  Francis  B.  Blake  manifests,  I  have  only  to 
assure  him  that  the  offended  honor  of  the  country  hav- 
ing been  thus  satisfied,  not  a  vestige  of  resentment  can 
remain  against  a  government  which,  in  so  solemn  a 
manner,  proclaims  to  the  civilized  world  that  it  does 
not  measure  the  right  of  the  offended  to  a  satisfaction 
by  his  power  to  exact  it,  but,  on  the  contrary,  highly  ap- 
preciates the  just  rights  of  a  people  which  has  so  well 
known  how  to  value  the  close  bonds  of  friendship  and 
consideration  which  have  hitherto  attached,  and  will 
continue  to  attach  still  more,  two  nations  which  in- 
habit the  same  continent."  (Diplomatic  Correspond- 
ence, 1866,  Part  II,  p.  317-8;  cf.  also  Moore's  Digest, 
vol.  VII,  p.  1090-1). 27 

EXPIATORY  MISSIONS  AND  MONUMENTS 

An  interesting  incident  occurred  in  the  reign  of 
Queen  Anne.  In  reparation  for  the  arrest  of  M.  Mat- 
tueof,  Peter  the  Great's  Ambassador,  it  was  found  dif- 
ficult to  inflict  upon  the  culprits  any  adequate  punish- 
ment. 

The  laws  were  acknowledged  to  be  inadequate  to  the 
situation.  Another  method  was  hit  upon,  therefore, 
for  affording  Russia  that  undoubted  satisfaction  which 
for  many  months  she  had  been  so  persistently  demand- 
ing. In  the  six  weeks'  jubilee  following  the  Tsar's 
return  from  his  victorious  campaign  against  Charles 

27 Another  interesting  incident  illustrating  the  procedure  in 
such  cases  is  afforded  by  the  Magee  Incident  between  Great 
Britain  and  Guatemala. 

See  E.  C.  Stowell:  The  Magee  Incident,  John  Byrne  and 
Co.,  Washington,  1920. 


EXPIATION  29 

XII,  Her  Majesty's  Ambassador  at  the  Russian  Court, 
specially  invested  for  this  single  mission  with  extraor- 
dinary and  plenipotentiary  powers,  apologized  in 
open  audience  in  the  Queen's  name  to  Peter  the  Great. 
Even  his  words  of  address  were  significant.  "Most 
High  and  Most  Potent  Emperor ! "  he  began ;  and  con- 
tinuing after  a  brief  rehearsal  of  the  case,  he  testified 
to  "the  sorrow  and  the  just  and  high  abhorrence" 
which  the  Queen  had  for  "that  rash  deed"  against  the 
Russian  Ambassador.  He  begged  excuse  for  the  defect 
and  insufficiency  of  the  ancient  British  Constitution, 
most  instantly  desiring  that,  "entirely  putting  the  same 
in  oblivion,"  His  Tsarish  Majesty  might  "again  gen- 
erously continue"  his  high  affection  to  the  Queen  and 
her  subjects. 

At  the  conclusion  of  this  address,  which  was  spoken 
in  English,  translations  in  German  and  Russian  were 
read  in  a  loud  voice.  The  Ambassador  then  placed 
in  the  Emperor's  hands  an  autograph  letter  from  the 
Queen,  which  the  Emperor  entrusted  to  his  Grand 
Chancellor  before  making  a  brief  speech  of  acknowl- 
edgment. 

It  was  on  February  9,  1710,  at  a  conference  of  the 
Emperor's  ministers  presided  over  by  this  same  Grand 
Chancellor,  that  suitable  conclusions  to  the  whole  mat- 
ter were  formulated.  It  was  arranged  that  M.  Mat- 
tueof,  then  Ambassador  at  The  Hague,  should  advise 
Queen  Anne  of  what  had  taken  place  at  the  Russian 
Court  and  of  the  gracious  clemency  of  the  Tsar  and  of 
his  desire  that  Her  Majesty  would  pardon  the  offend- 
ers. It  was  requested,  however,  that  Her  Majesty  her- 
self write  an  appropriate  letter  to  M.  Mattueof,  upon 
receipt  of  which — so  the  arrangement  ran — M.  Mat- 
tueof would  in  due  form  ask  for  his  letters  of  recall, 
which  he  had  not  obtained  in  his  haste  to  leave  England 
some  eighteen  months  before.  The  ambassador,  fur- 


30  INTERPOSITION 

ther,  was  to  be  reimbursed  for  all  the  costs  and  dam- 
ages which  he  had  been  '  *  obliged  to  be  at,  and  to  suffer, 
on  account  of  the  said  affront. ' '  And  finally,  when  all 
these  preliminaries  had  been  effected,  it  was  agreed 
that  Peter  the  Great  should  acquaint  the  Queen  that  he 
was ' '  content  with  the  f oresaid  satisfaction. ' '  ( This  ac- 
count of  the  Mattueof  incident  is  taken  textually  from 
Stowell  and  Munro:  International  Cases,  vol.  I,  p. 
6-7). 

After  the  repression  of  the  Boxer  uprising,  article  I 
of  the  conditions  contained  in  the  joint  note  of  Decem- 
ber 22, 1900,  signed  by  the  representatives  of  the  eleven 
intervening  powers,  provided  for  the  dispatch  of  an 
extraordinary  mission  to  Berlin  to  express  regret  for 
the  murder  of  Baron  von  Ketteler,  the  German  Minis- 
ter, and  further  required  the  "  erection  on  the  place 
where  the  murder  was  committed  of  a  commemorative 
monument  suitable  to  the  rank  of  the  deceased,  bearing 
an  inscription  in  the  Latin,  German,  and  Chinese  lan- 
guages, expressing  the  regrets  of  the  Emperor  of  China 
for  the  murder."  And  article  IV  exacted  that  expia- 
tory monuments  be  erected  "in  each  of  the  foreign  or 
international  cemeteries  which  had  been  desecrated." 
(Foreign  Relations,  1900,  p.  244;  Stowell  and  Munro: 
Cases,  vol.  I,  p.  114.) 

In  a  note  of  November  7,  1906,  Secretary  Koot  pro- 
posed to  the  Persian  Government  in  regard  to  the  ex- 
piation for  the  murder  of  one  Mr.  Laboree:  "In  like 
cases,  which  have  occurred  elsewhere  within  recent 
years,  notably  in  the  Chinese  Empire,  a  practical  solu- 
tion of  the  problem  has  been  found  and  one  which  may 
be  followed  with  singular  appropriateness  in  the  pres- 
ent case.  It  is  that  the  money  penalty  exacted  in  pun- 
ishment of  the  crime  shall  be  devoted  to  the  erection  of 
a  permanent  memorial  structure,  such  as  a  hospital  or 
school,  to  stand  as  a  monument  in  reprobation  of  the 


EXPIATION  31 

crime  and  as  a  beneficent  augury  of  a  better  state  of 
things  to  come.  Such  a  memorial  building  erected  in 
the  neighborhood  of  the  murder,  with  an  appropriate 
inscription,  would  serve  as  a  lasting  lesson  in  favor  of 
law  and  order,  besides  doing  a  work  of  good  among 
the  Persian  people."  (Foreign  Relations,  1907,  Part 
II,  p.  943-4.)  It  does  not  appear  that  this  humane  sug- 
gestion was  adopted. 

EXEMPLARY  DAMAGES 

Rehabilitation  may  be  secured  by  the  exaction  of 
money  damages  made  sufficiently  large  to  indicate  the 
penalizing  nature  of  the  payment.  Such  a  payment  is 
comparable  to  wergild,  which  in  the  historical  develop- 
ment of  municipal  law  was  at  first  an  alternative  for 
revenge,  but  later  became  an  enforced  substitute.  In 
the  case  of  injury  resulting  from  loss  of  prestige,  it  is 
impossible  to  render  an  exact  estimate  in  money.  But 
since  the  injury  is  psychological,  and  the  expiation 
need  only  be  of  such  a  nature  as  to  satisfy  public  opin- 
ion, exemplary  money  damages  suffice  in  many  instan- 
ces. There  seems  to  exist  a  subconscious  realization 
of  the  advantage  of  this  form  of  expiation,  which  main- 
tains peace,  and  perhaps  this  influences  the  community 
to  encourage  the  pecuniary  composition  of  offences.  A 
similar  evolution  may  be  noted  in  regard  to  that  sur- 
vival of  private  warfare — the  duel.  The  necessity  of 
protecting  the  peace  of  society  from  interruptions  by 
private  vengeance  has  led  the  United  States  and  Eng- 
land, where  a  sense  of  social  obligation  is  highly  devel- 
oped, to  enforce  the  prohibition  against  dueling,  and 
to  countenance  suits  for  civil  damages  for  certain  of- 
fences such  as  the  alienation  of  a  wife 's  affections.  In 
such  instances,  private  revenge  has  taken  the  form  of 
pecuniary  claims  presented  before  the  tribunals.  The 
same  evolution  in  international  relations  may  have  the 


32  INTERPOSITION 

effect  of  replacing  forcible  measures  to  redress  insults 
to  honor  by  demands  for  exemplary  damages,  the 
amount  of  which  might  be  submitted  to  arbitration.  It 
cannot  be  said  that  we  have  gone  very  far  on  this  road, 
but  the  advantage  of  the  maintenance  of  peaceful  rela- 
tions which  would  result  from  the  establishment  of 
such  a  procedure  would  be  very  great,  and  as  the  re- 
dress to  the  country's  honor  is  psychological,  as  has 
been  noted  above,  money  damages  could  be  made  to 
take  the  place  of  peremptory  demands  for  salutes  or 
other  direct  acknowledgments  of  a  fault.  When  the 
award  resulting  from  the  investigation  or  arbitration 
was  not  made  immediately  and  paid  forthwith  and  con- 
sidered as  a  debt  of  honor,  there  would  be  the  highest 
possible  justification  for  immediate  recourse  to  force, 
and  the  state  so  employing  force  would  have  behind 
it  the  enlightened  public  opinion  of  the  whole  world. 
The  continuation  of  the  same  process  which  led  in  mu- 
nicipal law  to  the  adoption  of  wergild  in  place  of  pri- 
vate revenge  should  be  encouraged  in  relations  be- 
tween nations.28 

Certain  states  which  hold  their  honor  lightly  may  be 

28Certain  affronts  to  honor  are  hard  to  express  in  terms  of 
money  damages,  and  in  France  and  Germany  it  has  been  custo- 
mary to  settle  such  matters  by  duels.  But  in  Anglo-Saxon 
countries  the  duel  has  almost  entirely  disappeared.  French 
and  Germans  have  been  wont  to  view  with  contempt  what  they 
consider  the  securing  of  money  damages  for  injury  to  a  man 's 
personal  honor.  They  have  not  taken  sufficiently  into  account 
that  the  real  punishment  lies  in  the  condemnation  of  society. 
The  newspaper  publicity  given  the  trial  enhances  the  punish- 
ment for  any  such  offense,  and  a  verdict  for  money  damages 
gives  the  official  seal  of  the  judiciary  as  proof  of  the  wrong 
done.  But  in  the  case  of  a  duel,  the  dormant  barbaric  instincts 
of  mankind  are  so  aroused  by  the  associations  gathering  about 
a  personal  combat,  that  the  dishonorable  and  sometimes  de- 
graded offense  is  forgotten  and  is  covered  over  by  the  romance 
and  glamor  of  the  social  respectability  of  a  duel. 


EXPIATION  33 

more  chastened  by  the  exaction  of  exemplary  pecuni- 
ary damages  than  by  an  abasement,  however  abject. 

It  will  depend  upon  circumstances  whether  a  mere 
apology  may  be  considered  efficacious  to  prevent  a  rep- 
etition of  an  offense. 

When  Great  Britain,  in  1874,  insisted  that  Guatemala 
must  pay  damages  for  the  assault  upon  the  British  Vice 
Consul  at  San  Jose,  the  Guatemalan  Minister  for  For- 
eign Affairs,  in  his  note  of  August  31,  replied: 

"I  regret  to  have  to  insist  in  denying  the  force  of 
this  argument  of  Lord  Derby.  My  government  cannot 
understand  that  the  injury  done  by  Gonzales  to  Magee 
is  understood  as  done  to  the  British  nation;  and,  in 
granting  that  it  is  so,  it  is  surprised  to  see  that  your 
government  desires  that  the  honor  and  dignity  of  Eng- 
land should  be  indemnified  with  money.  The  question 
of  honor  and  satisfaction  is  arranged  by  the  salute  to 
the  British  flag,  stipulated  for  in  Article  II  of  the  pro- 
tocol, as  is  customary  between  civilized  nations.  The 
honor  of  these  and  of  their  governments  cannot  be  in- 
demnified by  money,  whatever  the  sum  may  be  that  is 
offered.  National  offenses  have  no  price. 

"My  government,  whilst  it  further  considers  this 
point,  insists  that  it  owes  to  yours  no  indemnity,  and 
with  this  view,  trusts  that  you  will  transmit  to  the 
proper  department  the  observations  contained  in  this 
dispatch,  in  order  that,  in  conformity  with  the  stipu- 
lations of  the  protocol,  the  negotiations  on  this  point 
may  be  opened  in  a  formal  manner."29 

But  when  the  British  representative  presented  an 

^Parliamentary  papers,  1875,  vol.  82 ;  also,  E.  C.  Stowell : 
The  Magee  Incident,  John  Byrne  and  Co.,  Washington,  1920. 

Compare  the  incident  of  1895  between  Great  Britain  and 

Nicaragua,  when  a  peremptory  demand  for  an  indemnity  for 

treatment  of  British  subjects  was  enforced  by  the  occupation 

of  Corinto.     (Foreign  Relations,  1895,  Part  II,  p.  1025-1034.) 

3 


34  INTERPOSITION 

ultimatum  demanding  an  immediate  payment,  Guate- 
mala complied. 

The  inadequacy  of  an  apology  which  is  merely  per- 
functory is  illustrated  by  the  incident  which  oc- 
curred at  Lagos,  August  18,  1759.  British  warships 
violated  Portuguese  neutrality  near  the  fortress  of 
Lagos,  in  Algarve,  by  destroying  and  capturing  the 
French  Squadron  which  had  taken  refuge  there.  The 
British  Government  expressed  regrets  and  indicated  a 
willingness  to  send  a  special  expiatory  mission,  but 
refused  to  punish  Admiral  Boscawen  and  resented  the 
intimations  of  Portugal  that  the  two  captured  ships 
should  be  restored.  (Moore's  Arbitrations,  vol.  II,  p. 
1126-1130.) 

DISAVOWAL 

Since  governments  do  not  act  directly,  but  always 
through  the  agency  of  officials,  it  sometimes  happens 
that  the  latter  exceed  their  instructions,  in  which  event 
their  government  may  avoid  a  certain  measure  of  re- 
sponsibility by  disavowing  their  acts  and  by  inflict- 
ing an  appropriate  punishment.  The  apprehensions 
and  even  cowardice  of  governments  sometimes  lead 
them  to  take  advantage  of  this  facility  to  extricate 
themselves  from  embarrassing  situations,  without  a 
very  nice  regard  for  the  justice  of  their  action  towards 
an  officer  who  has  attempted  to  fulfil  their  wishes,  but 
in  recent  times  officials  are  becoming  very  careful  to 
confine  their  acts  strictly  within  the  limits  of  their  in- 
structions, so  that  the  responsibility  devolves  upon 
their  government.  The  consequence  is  that  a  disa- 
vowal becomes  much  more  humiliating  to  a  govern- 
ment. Nevertheless,  it  is  sometimes  indicated  as  the 
only  escape  from  disaster. 

In  the  preceding  pages  we  have  already  referred  to 
several  instances  in  which  the  acts  of  officials  were 


INDEMNITY  35 

disavowed  by  their  governments:  namely  in  the  case 
of  the  Florida's  violation  of  Brazilian  neutrality  and  in 
the  matter  of  the  offensive  statements  which  had  ap- 
peared in  the  Moniteur. 

§  4.     INDEMNITY 

When  the  unjustifiable  act  of  a  state  or  the  nationals 
for  which  it  is  responsible  has  injured  the  material 
interest  of  another  state,  international  justice  and 
the  maintenance  of  international  peace  require  that 
the  loss  should  be  made  good.  The  amount  recovered 
for  this  purpose  is  generally  called  an  indemnity.30 

Indemnity  covers  reparation:  that  is,  the  replacing 
of  the  injured  state  in  the  situation  in  which  it  stood 
before,  as  when  by  the  articles  of  Part  VIII  of  the 
Treaty  of  Versailles,  Germany  was  required,  in  as  far 
as  her  resources  would  allow,  to  make  provision  for  the 
payment  of  the  cost  of  repelling  the  unjustifiable  at- 
tack, including  the  war  losses  of  the  residents  of  the 
territory  unjustly  invaded. 

"Compensation"  means  the  making  good!  of  the 
other  losses  which  are  not  covered  by  restitution  and 
the  restoration  of  the  property  to  its  condition  before 
the  war.  Such  other  losses  would  include  that  result- 
ing from  the  deprivation  of  the  use  of  the  property, 
and  the  cessation  of  profit.30a 

In  how  far  the  payment  of  indirect  damages  result- 
ing from  an  international  offence  may  be  placed  upon 

30Indemnity  is  also  used  to  designate  the  incidental  expenses 
incurred  by  a  state  when  it  is  necessary  to  employ  force  for 
defense  or  for  the  vindication  of  its  rights.  Used  in  this  sense, 
indemnity  corresponds  in  international  relations  to  the  costs 
awarded  in  suits  at  law. 

308  In  the  Delagoa  Railway  arbitration  this  question  was 
discussed.  See  Stowell  and  Munro :  International  Cases,  vol. 
I,  p.  347  passim. 


36  INTERPOSITION 

the  state  that  has  caused  the  loss  is  a  matter  upon 
which  no  agreement  has  been  reached. 

In  a  controversy  which  is  not  pushed  to  the  ultimate 
decision  of  force,  the  compromise  solution  which  gen- 
erally settles  it  does  not  ordinarily  give  much  consider- 
ation to  the  more  indirect  or  remote  consequences  of 
the  injurious  act.  This  is  equally  true  when  the  matter 
is  referred  to  arbitration,  for  the  arbitrators  are  bound 
reasonably  to  interpret  and  follow  the  delegation  of 
authority  with  which  the  arbitrating  governments  cove- 
nanted to  clothe  them. 

Thus  in  the  matter  of  the  Alabama  claims,  the  Ameri- 
can claims  for  indirect  losses  were  not  allowed.31  But 
if  war,  instead  of  arbitration,  had  settled  the  contro- 
versy, there  would  have  been  no  legal  objection  to  the 
collection  of  the  indirect  losses,  provided  that  the  re- 
sult of  the  recourse  to  arms  had  been  sufficiently  favor- 
able to  the  United  States.32  In  principle,  however,  the 
innocent  state  that  has  suffered  injury  through  the 
fault  of  another  has  a  right  to  be  saved  whole  from  the 
harmful  consequences  of  that  fault.33 

§5.     SECURITY 

Redress  would  be  indeed  incomplete  if  there  were  no 
guarantee  against  the  repetition  of  the  offense  which 
caused  the  unjustifiable  injury.  It  is  of  importance  to 
the  injured  state,  and  to  the  society  of  states,  that  such 

31  Cf.  Moore's  Arbitrations,  vol.  I,  p.  624-646.  The  action 
of  the  arbitration  tribunal  must  be  considered  as  a  precedent 
against  the  award  of  indirect  damages. 

32For  a  discussion  of  indemnity,  see  Borchard :  Diplomatic 
Protection,  §§  175,  176,  177,  p.  416,  419. 

83 Article  1382  of  the  French  Civil  Code  declares:  "Any 
act  by  which  a  person  causes  damages  to  another  binds  the  per- 
son by  whose  fault  the  damage  occurred  to  repair  such  dam- 
age." (Quoted  from  E.  Blackwood  Wright:  The  French 
Civil  Code,  London,  1908,  p.  256.) 


PUNISHMENT  37 

reasonable  conditions  be  exacted  as  will  provide  securi- 
ty against  the  commission  of  another  similar  of- 
fense.34 

"For,"  as  Vattel  truly  says,  "a  state  which  has  re- 
ceived an  injury  has  the  right  to  provide  for  its  future 
security  by  depriving  the  offender  of  the  means  of  do- 
ing harm."  (Bk.  Ill,  ch.  Ill,  §45,  Carnegie  Transla- 
tion, p.  250.) 

In  fixing  the  terms,  the  avarice  and  apprehensions  of 
the  victor  are  balanced  by  compassion  and  the  fear  of 
the  intervention  of  other  powers  to  preserve  a  healthy 
disposition  of  power. 

§  6.     PUNISHMENT 

Among  the  purposes  comprehended  in  the  recourse 
to  measures  of  force  is  punishment.  The  principal  ob- 

34In  a  letter  of  October  29,  1870,  John  Stuart  Mill  wrote 
a  French  correspondent  that,  in  spite  of  the  great  sympathy  in 
Great  Britain  for  the  misfortunes  of  France,  and  the  desire 
that  she  might  come  out  of  them  as  favorably  as  the  circum- 
stances would  allow :  ' '  here  it  is  felt  that  France  owes  a  large 
reparation  to  Germany  for  the  great  sacrifices  of  her  most 
precious  blood  which  an  unjust  aggression  have  imposed  upon 
her."  (Translated  from  Mill's  Letters,  vol.  II,  p.  275.) 

In  a  letter  of  the  previous  month  (September  30),  to  Sir 
Charles  Dilke,  he  condemned  the  French  for  "one  of  the 
wickedest  acts  of  aggression  in  history,"  and  considered  that 
the  Germans  had  "a,  just  claim  to  as  complete  a  security  as 
any  practicable  arrangement  can  give  against  the  repetition  of 
a  similar  crime,"  and  although  he  expressed  repugnance  "to 
the  transfer  of  a  population  from  one  government  to  another, 
unless  by  its  own  express  desire,"  he  wished  he  could  settle 
the  terms  of  peace  so  that  "the  disputed  territory  [Alsace  and 
Lorraine]  should  be  made  into  an  independent  self-governing 
State,  with  power  to  annex  itself  after  a  long  period  (say 
fifty  years)  either  to  France  or  to  Germany;  a  guarantee  for 
that  term  of  years  by  the  neutral  powers  (which  removes  in 
some  measure  the  objection  to  indefinite  guarantees),  or,  if 
that  could  not  be  obtained,  the  fortresses  being  meanwhile  gar- 
risoned by  German  troops."  (Letters  of  John  Stuart  Mill, 
1910,  vol.  II :  p.  274.) 


38  INTERPOSITION 

ject  of  punishment  is  to  protect  the  community  by  de- 
terring the  culprit  and  all  others  from  similar  offenses. 
In  a  more  primitive  condition  of  society,  crimes  are 
avenged  or  punished  by  the  victim  or  his  relatives,  and 
the  fear  of  retaliation  or  the  blood-feud  acts  as  a  pro- 
tection to  the  community  against  the  prevalence  of 
crime.  As  society  developed,  the  continuation  of  these 
feuds  became  so  disturbing  to  the  peace  of  the  com- 
munity that  it  was  found  necessary  to  subject  the  pro- 
cedure to  be  followed  in  avenging  them  to  a  careful 
regulation.  In  the  course  of  time,  private  revenge  has 
been  almost  entirely  done  away  with,  and  the  modern 
state  punishes,  as  we  have  said,  for  the  security  of  so- 
ciety. Although  the  first  aim  is  to  protect  the  com- 
munity from  the  repetition  of  the  offense,  the  refor- 
mation of  the  criminal  himself  has  recently  become  one 
of  the  principal  concerns  of  our  system  of  penal  legis- 
lation and  administration.35 

The  lack  of  any  well  defined  international  organiza- 
tion leaves  to  the  separate  member  states  the  punish- 
ment of  international  transgressions.  This  system  of 
self -enforcement  of  the  law  is,  as  was  said  above,  some- 
times called  self-help.  When  a  state  exacts  redress  for 

35"  Where  formerly  only  the  accomplished  deed  was  con- 
sidered, the  purpose  of  punishment  is  now  taken  into  account. 
Such  purpose  is  not  to  inflict  a  punishment  for  what  has  been 
done,  as  if  in  satisfaction  of  a  sentiment  of  individual  or  col- 
lective vengeance,  but  to  bring  about  a  certain  result.  The 
Germans  call  this  aspect  of  punishment  (in  contrast  to  the 
'  Vergeltungsstraf e, '  which  in  the  classic  view  was  a  punish- 
ment by  way  of  compensation  or  retribution)  the  'Zweck- 
strafe,'  which  we  can  hardly  render  more  closely  than  by  the 
phrase,  '  punishment  for  a  purpose. '  Yet  the  term  does  scant 
justice  to  the  important  movement  inspired  by  Ihering,  and 
to  the  significance  therein  attached  to  the  conception  of  the 
final  purpose  ('Zweck'),  the  consideration  of  which  was  to  re- 
animate the  dead  bones  of  the  law."  (Saleilles:  The  Indi- 
vidualization  of  Punishment,  [Translation]  Boston,  1911,  p. 
8-9.) 


PUNISHMENT  39 

the  injury  to  its  prestige  or  interests,  it  protects  society 
by  making  it  certain  to  all  who  harbor  evil  designs  that 
the  transgressor  will  be  brought  to  book. 

In  a  few  instances,  the  states  have  united  to  punish 
some  extraordinary  crime  against  their  law.  The  best 
example  of  this  collective  intervention  for  the  purpose 
of  punishing  the  guilty  state  is  that  of  China  after  the 
Boxer  outrages,  when  the  combined  forces  of  the 
powers  occupied  Peking  and  addressed  a  joint  note  to 
the  Chinese  government.  In  this  note,  dated  Decem- 
ber 22,  1900,  and  signed  by  the  representatives  of 
eleven  states,  were  set  forth  the  conditions  which  must 
be  fulfilled  before  the  occupation  of  Chinese  territory 
by  the  cooperating  states  would  be  terminated, — con- 
ditions "which,"  so  the  note  ran,  "they  deem  indis- 
pensable to  expiate  the  crimes  committed  and  to  pre- 
vent their  recurrence."  (Foreign  Relations,  1900,  p. 
244.) 

PUNISHMENT  OF  LESS  CIVILIZED  NATIONS 
In  how  far  it  is  justifiable  and  expedient  to  employ 
measures  of  unusual  severity  against  nations  that  are 
less  mindful  of  their  international  obligations  is  one  of 
the  most  difficult  problems  of  international  law.  Lord 
Elgin  has  been  very  severely  criticized  for  burning  the 
Summer  Palace  in  retaliation  upon  China  for  her  re- 
fusal to  carry  out  the  treaties  she  had  signed  and  her 
treacherous  treatment  of  the  British  negotiators.  Lord 
Elgin  recognized  the  criticism  which  his  act  would 
arouse,  but  considered  that  it  was  impossible  in  any 
other  way  to  bring  home  to  the  Chinese  the  superior 
force  at  the  command  of  the  Europeans  and  their  abili- 
ty to  command  respect  for  their  rights.  A  more  re- 
cent example  of  drastic  action  was  the  French  bom- 
bardment of  Casablanca  in  1907  in  punishment  for  the 
treatment  of  Europeans  in  that  place. 


40  INTERPOSITION 

In  1854,  when  the  inhabitants  of  Greytown  insulted 
the  American  Minister,  a  warship  was  sent  to  demand 
redress,  and  when  this  was  not  forthcoming,  the  naval 
officer  in  command,  acting  on  his  own  responsibility, 
bombarded  and  burned  down  the  town.  Professor 
John  Bassett  Moore  gives  the  following  account  of 
this  latter  incident:  "Greytown,  a  community  then 
lying  outside  the  acknowledged  boundaries  of  Nica- 
ragua, in  what  was  known  as  the  Mosquito  Coast,  main- 
tained an  independent  existence  under  the  authority 
of  the  Mosquito  King,  who  was  understood  to  enjoy  the 
patronage  of  the  British  Government.  As  the  result 
of  a  controversy  with  Nicaragua  concerning  limits, 
which  involved  the  question  of  jurisdiction  over  Punta 
Arenas,  property  belonging  to  the  Accessory  Transit 
Company,  an  organization  of  American  citizens  hold- 
ing a  charter  from  Nicaragua,  was  on  various  occa- 
sions seized  or  destroyed  at  that  point  by  the  Greytown 
authorities,  and  for  these  acts  damages  were  demand- 
ed. There  was,  however,  another  complaint  which  was 
supposed  to  affect  the  'dignity'  of  the  United  States. 
At  that  time  the  United  States  was  represented  in  Cen- 
tral America  by  a  minister  named  Solon  Borland,  from 
Arkansas,  a  man  of  spirit  who  had  served  in  the  Mexi- 
can War.  One  day  the  Greytown  authorities  attempted 
to  arrest  the  captain  of  an  Accessory  Transit  steamer, 
then  lying  at  Punta  Arenas,  when  Mr.  Borland  hap- 
pened to  be  aboard.  The  captain  resisted,  and  in  the 
scrimmage  that  ensued,  Mr.  Borland  seized  a  musket 
and  gave  to  the  captain  successful  support.  Great  ex- 
citement ensued  at  Greytown;  and  it  was  presently 
fanned  to  a  flame  by  the  announcement  that  Mr.  Bor- 
land intended  to  call  upon  the  resident  United  States 
commercial  agent  in  the  evening.  A  suggestion  from 
the  latter  that  this  visit  be  considerately  omitted,  Mr. 
Borland,  his  blood  still  up,  scornfully  rejected;  and 


PUNISHMENT  41 

while  he  was  in  the  agent 's  house,  a  violent  commotion 
in  the  street  denoted  the  presence  of  a  mob.  Mr.  Bor- 
land, nothing  daunted,  promptly  appeared  in  the  gal- 
lery and  warned  the  tumultuous  assemblage  to  dis- 
perse. But  his  oratory  was  suddenly  checked  by  a  blow 
in  the  face  from  a  bottle,  thrown  by  some  one  in  the 
crowd,  who,  after  draining  from  the  flask  the  last  in- 
spiring drop,  used  it  as  a  missile.  For  the  redress  of 
these  accumulated  grievances,  Captain  Hollins,  of  the 
U.  S.  S.  Cayane,  was  dispatched  to  Greytown.  Lack- 
ing specific  instructions  as  to  procedure,  he  made  upon 
the  local  community  demands  which  it  was  either  un- 
willing, or  unable,  or  without  adequate  opportunity  to 
meet,  and,  the  time  limit  having  expired,  first  bombard- 
ed and  then  burned  the  town,  utterly  destroying  it. 
This  somewhat  fierce  and  drastic  punitive  measure 
created  a  sensation  throughout  the  civilized  world.  I 
have  in  my  collections  a  pamphlet  on  the  case,  pub- 
lished in  France,  on  the  cover  of  which  is  an  arm  up- 
lifted in  vengeance  and  bearing  an  incendiary  torch." 
(Political  Science  Quarterly,  1915,  vol.  XXX,  p.  390-2, 
quoted  in  Stowell  and  Munro :  International  Cases,  vol. 
I,  p.  119-121.) 

In  view  of  the  many  instances  in  which  bombard- 
ment and  drastic  measures  have  been  employed,  it  is 
hard  to  deny  that  there  is  a  presumption  of  legality  in 
their  favor.  Nevertheless,  such  brutality  seems  to  be 
in  conflict  with  the  humanitarian  principles  which  gov- 
ern all  nations  in  their  relations  with  one  another.  A 
French  work  on  the  law  of  nations  expressed  the  opin- 
ion that  it  will  rarely  be  found  that  a  nation  capable  of 
profiting  from  such  lessons  will  incur  the  risk  of  receiv- 
ing them.  (See  Funk-Brentano  et  Sorel:  Droit  des 
Gens,  p.  229-230.) 

When  the  territorial  sovereign  is  too  weak  or  is  un- 
willing to  enforce  respect  for  international  law,  a  state 


42  INTERPOSITION 

which  is  wronged  may  find  it  necessary  to  invade  the 
territory  and  to  chastise  the  individuals  who  violate  its 
rights  and  threaten  its  security.  Our  relations  with 
Mexico  afford  many  instances  of  such  expeditions,  gen- 
erally spoken  of  as  punitive  expeditions. 

Whenever  it  is  possible  to  inflict  directly  upon  the  in- 
dividuals who  are  responsible  the  punishment  they  de- 
serve for  the  violation  of  international  law,  the  ends 
of  justice  will  be  better  served.  When  an  entire  people 
is  made  to  suffer  for  some  delinquency  for  which  it  is 
indirectly  responsible  through  the  action  of  its  officials, 
a  deep  feeling  of  resentment  may  be  engendered,  while 
the  very  individuals  who  are  responsible  may  escape 
the  penalty  calculated  to  restrain  others  from  a  like  of- 
fense. Ordinarily,  of  course,  the  government  respon- 
sible will  be  expected  to  punish  the  officials  guilty  of 
the  violation,  and  when  it  is  too  weak  to  undertake  this 
task,  the  injured  government  may,  as  has  been  said 
above,  cooperate  by  having  recourse  to  measures  of 
self-help.  There  are  many  such  instances  of  punitive 
expeditions  to  punish  guilty  individuals.36 

When  the  offenders  are  officials  of  the  government  or 
when  a  government  assumes  the  responsibility  for  the 
offenses  by  preventing  punishment,  the  punitive  ex- 
pedition must  be  directed  against  the  governmental 
authorities.  An  interesting  case  occurred  in  Central 

36An  account  of  the  instances  in  which  the  United  States  has 
considered  it  necessary  to  punish  less  civilized  communities  for 
outrages  against  American  citizens  will  be  found  in  the  mem- 
oranda prepared  by  Solicitor  J.  R.  Clark  of  the  Department  of 
State,  October  5,  1912,  entitled,  "Right  to  Protect  Citizens  in 
Foreign  Countries  by  Landing  Forces."  The  incident  of  the 
Falkland  Islands  in  1831  (see  above  §  1,  and  Moore's  Digest, 
vol.  V,  p.  878  f.)  affords  an  excellent  example  of  a  just  retri- 
bution which  was  inflicted  with  the  most  scrupulous  regard 
to  the  rights  of  the  government  claiming  to  be  sovereign.  The 
firmness  and  moderation  with  which  the  culprits  were  pun- 
ished deserves  commendation. 


PUNISHMENT  43 

America.  President  Zelaya  of  Nicaragua  summarily 
executed,  December  17, 1909,  two  Americans,  Groce  and 
Cannon,  who  had  participated  in  a  revolt  against  his 
authority. 

Partly  in  consequence  of  this  rash  and  lawless  act, 
Secretary  Knox,  in  a  note  dated  December  1,  informed 
the  representative  of  Nicaragua  that ' '  the  President  no 
longer  feels  for  the  Government  of  President  Zelaya 
that  respect  and  confidence  which  would  make  it  ap- 
propriate hereafter  to  maintain  with  it  regular  diplo- 
matic relations,  implying  the  will  and  the  ability  to  re- 
spect and  assure  what  is  due  from  one  state  to  an- 
other. ' '  And  the  representative  was  informed  that  his 
passport  was  enclosed,  for  use  in  case  he  desired  to 
leave  the  country  (Foreign  Eelations,  1909,  p.  456, 
passim.) 

Thereafter  Zelaya 's  position  in  Nicaragua  became 
untenable,  and  he  was  forced  to  flee  to  Europe. 

Still  more  recently,  after  the  Villa  raid  on  Columbus, 
President  Wilson  ordered  a  punitive  expedition  into 
Mexican  territory  to  capture  the  bandit.  Upon  the  pro- 
test of  Mexico  the  expedition  was  withdrawn.  (See  J. 
B.  Moore:  Principles  of  American  Diplomacy,  p.  227 

f.) 

The  principle  of  personal  responsibility  is  recog- 
nized by  the  stipulations  of  the  Versailles  Peace  Treaty 
of  June  28, 1919,  which  makes  provision  for  the  trial  of 
ex-Emperor  William  and  other  German  officials  ac- 
cused of  responsibility  in  undertaking  the  war  and  of 
violations  of  international  law  in  the  course  of  the  con- 
duct of  military  operations  (Articles  227-230). 

RESTRAINING  INFLUENCE  OF  PUNISHMENT 
The   restraining  influence  which  any  punishment 
will  have  upon  the  offender  and  upon  others  is  one  of 
those  psychological  factors  which  defy  analysis  and,  in 


44  INTERPOSITION 

the  absence  of  an  international  code,  there  is  no  meas- 
ure of  the  degree  of  punishment  which  is  reasonable  to 
effect  the  object  in  view.  Whenever  public  opinion  is 
aroused  over  some  flagrant  transgression,  the  popular 
demand  for  revenge  or  satisfaction  influences  respon- 
sible statesmen  to  seek  a  punishment  in  excess  of  that 
which  would  be  necessary  to  prevent  a  repetition  of  the 
offense.  Because  of  this  lack  of  regulation  in  inter- 
national affairs,  the  Law  of  the  Talion,  or  retaliation, 
is  widely  applied.  The  fear  of  redress  or  reprisals  is 
ever  present  to  those  who  conduct  international  affairs, 
although  it  is  difficult  to  estimate  the  importance  of 
this  influence  in  any  particular  instance.  But  as  this 
relates  more  to  means  and  methods  we  cannot  discuss 
it  here. 

In  international,  as  in  national  affairs,  there  are  cer- 
tain minor  offenses  for  which  it  is  difficult  to  impose  a 
sufficiently  severe  restraining  punishment  without  mak- 
ing the  penalty  out  of  all  proportion  to  the  offense.  In 
such  cases,  it  is  essential  to  take  action  by  way  of  an- 
ticipation to  prevent  the  commission  of  the  injury,  or 
quickly  to  compel  the  offender  to  desist.  Action  taken 
for  such  a  purpose  is  more  in  the  nature  of  police  ad- 
ministration or  international  police  patrol. 


CHAPTER  II 
INTERNATIONAL  POLICE1 

§  7.      COUNTER-INTERVENTION2 

In  every  community  whose  conduct  is  in  any  measure 
controlled  by  law — and  in  the  absence  of  law  there  can 
be  no  community — provision  must  be  made  for  the 
effective  enforcement  of  the  law.  Before  the  estab- 
lishment of  a  special  constabulary  entrusted  with  its 
enforcement,  we  usually  find  that  every  member  is 
expected  himself  to  seek  redress  for  the  injuries  which 
he  may  have  received.  Sympathy  of  public  opinion  is 
the  most  that  he  is  entitled  to  expect  from  those  not  im- 
mediately concerned,  except  when  some  outrageous 
crime  arouses  the  whole  community  to  action.  But 
even  in  matters  of  less  serious  import,  the  collective 
action  of  the  community  makes  itself  felt  in  the  insist- 

irThe  meaning  of  "international  police"  is  more  fully  con- 
sidered below,  §  9.  Here  we  need  only  note  that  it  is  used  in 
the  sense  of  justifiable  action  to  enforce  a  compliance  with  the 
provisions  of  international  law. 

2< ' Interposition "  is  more  generally  in  use  than  "counter- 
intervention,  ' '  but  since  ' '  interposition ' '  has  lately  been  adopt- 
ed as  the  term  to  cover  action  of  a  government  undertaken  in 
defense  of  the  rights  of  nationals,  it  will  be  preferable  to  avoid 
confusion  by  employing  "counter-intervention."  Whenever 
a  state  justly  intervenes  to  oppose  an  unjustifiable  interfer- 
ence, "intermeddling"  may  be  used  to  designate  unjustifiable 
interference,  which  is  an  attempt  to  prevent  other  states 
from  settling  their  own  affairs  in  their  own  way.  Hall 
uses  " counter-interf erence "  (Hall:  International  Law,  4  ed., 
§  93,  p.  306).  Creasy  uses  "counter-intervention"  (Creasy: 
First  Platform,  p.  306;  cf.'Rougier:  Guerres  Civiles,  §  80, 
p.  338). 

45 


46  INTERNATIONAL  POLICE 

ence  that  the  parties  shall  observe  the  recognized  forms 
of  procedure.  Such  a  system  of  procedure  for  the  en- 
forcement of  law  is  certainly  expeditious  and  inex- 
pensive for  the  community,  but  it  is  apt  to  leave  insuf- 
ficiently protected  matters  of  general  concern,  especial- 
ly in  those  instances  when  no  one  state  is  sufficiently 
interested  to  undertake  alone  the  burden  of  the  en- 
forcement of  the  law.  A  still  more  serious  defect  of 
this  system  is  that  it  leaves  the  weak  without  the  means 
to  bring  the  strong  transgressor  to  justice. 

In  the  society  of  nations  there  still  exists,  as  we  have 
seen,  no  organized  constabulary,  and  each  nation  is 
expected  to  take  what  action  it  may  find  justifiable  and 
expedient  to  secure  redress  for  whatever  injury  an- 
other may  have  done  it.  Under  present  conditions,  this 
procedure  has  many  advantages,  and  in  any  event  it  is 
the  only  method  practicable  until  the  sovereign  states 
shall  be  ready  to  give  up  a  larger  measure  of  the  free- 
dom of  their  action,  and  establish  a  more  perfect  or- 
ganization. 

In  the  meantime,  international  law  must  depend 
mainly  upon  interposition,  that  is,  the  action  of  the 
separate  states  to  secure  redress  for  their  own  injuries. 
Whenever  a  separate  state  acts  for  this  purpose,  it  will 
also  vindicate  international  law,  and  help  to  secure  for 
it  the  respect  it  deserves.  In  practice  this  system  is 
found  to  work  very  well.  The  explanation  is  simple- 
each  one  of  the  really  independent  states  has  been  able 
to  maintain  this  proud  position  only  by  the  fact  of  its 
ability  to  interpose  effectively  to  secure  redress  when- 
ever any  of  its  international  rights  were  injured.  In 
the  case  of  an  independent  state  too  weak  itself  to  inter- 
pose for  the  redress  of  its  own  injuries,  there  must 
have  been  some  powerful  and  friendly  state  so  inter- 
ested in  the  maintenance  of  the  weaker  state 's  nominal 
independence  as  to  be  ready  to  cooperate  with  the  lat- 


COUNTER-INTERVENTION  4? 

ter  to  help  it  secure  redress.  In  those  other  instances 
of  general  concern  when  no  state  is  sufficiently  inter- 
ested to  undertake  an  intervention  for  the  purpose  of 
vindicating  international  law,  or  when  a  friendless  in- 
jured state  is  so  conspicuously  inferior  in  strength  as 
to  make  such  action  impossible,  international  law  rec- 
ognizes the  right  and  the  obligation  of  all  the  other 
states  to  cooperate  to  vindicate  the  law  of  nations.3 
This  principle  is,  however,  not  so  generally  recognized 
as  it  should  be.  There  are  not  a  few  writers  of  first 
authority  who  deny  it  altogether.*  The  confusion 

3" Third  states,"  writes  Westlake,  "may  therefore  step  in, 
in  support  of  justice  or  of  their  interests  so  far  as  consonant 
with  justice."  (International  Law,  vol.  I,  p.  320;  cf,  ibid, 
p.  317.) 

Hall  expresses  the  same  opinion:  "When  a  state  grossly 
and  patently  violates  international  law  in  a  matter  of  serious 
importance,  it  is  competent  to  any  state,  or  to  the  body  of 
states,  to  hinder  the  wrongdoing  from  being  accomplished,  or 
to  punish  the  wrongdoer.  Liberty  of  action  exists  only  within 
the  law.  The  right  to  it  cannot  protect  states  committing  in- 
fractions of  law,  except  to  the  extent  of  providing  that  they 
shall  not  be  subjected  to  interference  in  excess  of  the  measure 
of  the  offence;  infractions  may  be  such  as  to  justify  remon- 
strance only,  and  in  such  cases  to  do  more  than  remonstrate 
is  to  violate  the  right  of  independence.  Whatever  may  be 
the  action  appropriate  to  the  case,  it  is  open  to  every  state  to 
take  it.  International  law  being  unprovided  with  the  sup- 
port of  an  organized  authority,  the  work  of  police  must  be 
done  by  such  members  of  the  community  of  nations  as  are  able 
to  perform  it."  (Hall:  International  Law,  4  ed.,  1895,  §  12, 
p.  57-8 ;  cf .  Oppenheim :  International  Law,  2  ed.,  vol.  I,  §  9, 
p.  13;  Lorimer:  Institutes  of  the  Law  of  Nations,  vol.  I,  p. 
10 ;  Lawrence :  Principles,  4  ed.,  1910,  §  64,  p.  127 ;  Sheldon 
Amos :  Political  and  Legal  Remedies  for  War,  p.  187-8 ;  Vat- 
tel :  The  Law  of  Nations,  Introduction,  §  22,  Carnegie  Trans- 
lation, p.  8;  ibid.  II,  ch.  I,  §  4,  p.  114) ;  Stapleton:  Interven- 
tion, p.  125 ;  Rossi  (Archives  de  droit  et  legislation,  1837,  vol. 
I,  p.  372.) 

4 Woolsey,  discussing  " whether  a  state  is  bound  to  aid 

other  states  in  the  maintenance  of  general  justice,"  although 
he  himself  recognizes  the  obligation  of  cooperation,  writes: 


48  INTERNATIONAL  POLICE 

arises  principally,  I  believe,  from  the  failure  to  remem- 
ber that  the  recognition  of  the  obligation  to  intervene 
for  the  vindication  of  international  law  still  allows 
every  independent  state  to  exercise  its  sovereign  right 
of  decision  as  to  when  and  how  its  obligation  shall 
be  fulfilled.  In  international  relations,  it  is  not  possible 
to  place  upon  independent  states  the  same  requirement 
to  help  in  the  enforcement  of  law  as  we  recognize  to  rest 
upon  each  citizen  in  municipal  law.5  In  our  national  or 
municipal  law,  every  citizen  is  expected  to  respond  to 
the  summons  of  the  sheriff  and  risk  his  life  in  helping 
to  enforce  the  law.  But  he  has  behind  him  for  his  pro- 
tection an  organized  force  able  to  avenge  him  if  in- 
jured, and  to  punish  him  if  he  refuses  to  comply.  Fur- 

"The  prevalent  view  seems  to  have  been  that,  outside  of  its 
own  territory,  including  its  ships  on  the  high  seas,  and  beyond 
its  own  relations  with  other  states,  a  state  has  nothing  to  do 
with  the  interests  of  justice  in  the  world.  Thus  laws  of  ex- 
tradition and  private  international  law  are  thought  to  origi- 
nate merely  in  comity.  Thus,  too,  crimes  committed  by  its 
own  citizens  abroad  it  is  not  bound  to  notice  after  their  return 
home.  Thus,  again,  contrabrand  trade  is  held  not  to  begin 
within  the  neutral's  borders,  and  outside  of  them,  as  on  the 
high  seas,  concerns  the  belligerent  alone.  And  again,  when 
a  nation  commits  a  gross  crime  against  another,  third  parties 
are  not  generally  held  to  be  bound  to  interfere.  This  is  the 
most  received,  and  may  be  called  the  narrow  and  selfish  view." 
(Woolsey:  International  Law,  §  20-b,  5th  ed.,  1878,  and  later 
editions.  It  is  interesting  to  observe  how  in  his  first  edition, 
1860,  Woolsey  had  not  yet  reached  so  firm  a  conviction  as  to 
the  obligation  to  intervene  in  support  of  international  law. ) 

6In  the  continuation  of  the  extract  from  Hall  which  we  have 
given  in  a  preceding  note,  that  author  states :  ' '  It  is  however 
for  them  [the  intervening  states]  to  choose  whether  they  will 
perform  it  or  not.  The  risks  and  the  sacrifices  of  war  with 
an  offending  state,  the  chances  of  giving  umbrage  to  other 
states  in  the  course  of  doing  what  is  necessary  to  vindicate  the 
law,  and  the  remoter  dangers  that  may  spring  from  the  ill- 
will  produced  even  by  remonstrance,  exonerate  countries  in 
all  cases  from  the  pressure  of  a  duty. "  (Hall:  International 
Law,  4  ed.,  1895,  §  12,  p.  58.) 


COUNTER-INTERVENTION  49 

thermore,  the  life  of  one  individual  is  of  small  moment 
in  the  community,  provided  the  correct  principles  pre- 
vail for  the  guidance  of  all  men.  For  a  nation,  the  con- 
ditions are  not  comparable.  The  force  on  the  side  of 
law  may  temporarily  be  less  than  the  might  arrayed 
against  it,  and  there  is  no  machinery  to  compel  any 
state  to  incur  the  burden  of  enforcing  the  law.  Civiliza- 
tion might  not  be  best  served  if  the  states  which  had 
reached  the  highest  degree  of  development  should  light- 
ly risk  the  fruits  of  their  culture  whenever  their  com- 
mon law  was  violated. 

Even  though  the  other  states  may  be  slow  to  inter- 
vene with  arms  to  vindicate  the  law  of  nations  when 
their  national  interests  are  not  sufficiently  involved, 
the  transgressor  is  sure  to  incur  the  efficacious  penalty 
of  discrimination  from  other  states.  Of  small  effect  in 
each  isolated  instance,  the  sum  total  of  all  the  discrimi- 
nations of  all  the  states  will  weigh  heavily  against  the 
transgressor. 

Governments  usually  go  as  far  in  enforcing  the  law 
as  public  opinion  will  support.  It  is  therefore  neces- 
sary to  educate  the  public,  first,  as  to  the  nature  of  in- 
ternational law,  and,  second,  as  to  the  obligation  their 
state  is  under  to  make  greater  sacrifices  to  insure  its 
enforcement.  Under  present  conditions  the  obligation 
to  intervene  for  the  vindication  of  the  law  cannot  be 
made  absolute,  but  must  be  left  to  the  discretion  of 
each  state.  Reasonable  action  by  way  of  remonstrance 
and  discrimination  will  generally  be  taken  in  support 
of  the  innocent,  as  opposed  to  the  transgressor.  Oc- 
casionally a  government  will  go  further  and  intervene 
by  force  of  arms  for  the  vindication  of  the  law.  Such 
intervention  is  legal.  It  is  commendable,  but  it  must  be 
confessed  that  it  has  generally  been  actuated  by  politi- 
cal considerations.  The  enforcement  of  the  law  is,  to 
say  the  truth,  never  far  removed  from  politics.  Even 


50  INTERNATIONAL  POLICE 

in  our  local  affairs  we  are  careful  to  place  the  enforce- 
ment of  the  law  in  the  hands  of  political  appointees  or 
of  officials  elected  at  the  polls,  and  it  would  not  be  diffi- 
cult to  furnish  a  long  list  of  instances  where  political 
considerations  have  prevented  the  law  from  being  en- 
forced. 

In  international  affairs,  the  enforcement  of  law 
usually  waits  until  some  powerful  state  is  sufficiently 
interested  to  have  it  vindicated.  But  the  interests  of 
the  great  states  are  now  so  widespread  that  it  will 
rarely  happen  that  not  one  will  be  found  to  demand  the 
enforcement  of  the  law;  and  in  this  way  the  motive 
of  self-interest  has  now  become  still  more  potent  to 
keep  the  actual  system  working  in  a  manner  reason- 
ably satisfactory. 

RESISTANCE  TO  THE  ENFORCEMENT  OF  LAW 

The  recognition  of  the  right  to  employ  force  to  vindi- 
cate the  law  carries  with  it  necessarily  a  corresponding 
obligation  on  the  part  of  all  the  nations  not  to  interfere 
with  the  recognized  and  orderly  procedure  for  the  en- 
forcement of  the  law.  Consequently,  any  state  that  has 
been  guilty  of  a  wilful  violation  of  the  law  of  nations 
in  its  refusal  to  make  adequate  redress  has  no  right 
to  resist  such  reasonable  force  as  may  be  necessary  to 
vindicate  the  law  and  obtain  redress.  Although  we 
can  hardly  expect  that  a  government  which  refuses  to 
recognize  its  transgression,  and  to  make  amends,  will 
refrain  from  offering  such  resistance  as  it  may  have 
in  its  power,  this  principle  of  the  illegality  of  resistance 
to  force  lawfully  employed  for  the  vindication  of  inter- 
national law  is  incontrovertible.6  Vattel  well  says : 

6< '  The  right  of  protection  over  citizens  abroad,  which  a  state 
holds,  may  cause  an  intervention  by  right  to  which  the  other 
party  is  legally  bound  to  submit.  And  it  matters  not  whether 
protection  of  the  life,  security,  honor,  or  property  of  a  citizen 


HUMANITAEIAN  INTERVENTION  51 

"  Defensive  war  is  just  when  it  is  carried  on  against 
an  unjust  aggressor.  That  needs  no  proof.  Self-de- 
fense against  an  unjust  attack  is  not  only  a  right  which 
every  nation  has,  but  it  is  a  duty,  and  one  of  its  most 
sacred  duties.  But  if  the  enemy,  in  carrying  on  an 
offensive  war,  has  justice  on  his  side,  the  nation  has  no 
right  to  resist,  and  defensive  war  is  then  unjust.  For 
the  enemy  is  only  acting  on  his  right ;  he  has  taken  up 
arms  to  obtain  justice  which  was  refused  him;  and  it 
is  an  act  of  injustice  to  resist  one  who  is  exercising  his 
right. 

1  'The  only  thing  left  to  do  in  such  a  case  is  to  offer 
due  satisfaction  to  the  invader.  If  he  is  unwilling  to 
accept  it,  the  state  has  the  advantage  of  having  won 
over  justice  to  its  side,  and  it  may  thenceforth  justly 
resist  his  attack,  which  has  now  become  unjust,  since 
the  grounds  for  it  are  removed. "  (Vattel:  The  Law  of 
Nations,  Bk.  Ill,  ch.  II,  §<§  35,  36,  Carnegie  Translation, 
p.  246.) 

§8.     HUMANITARIAN  INTERVENTION 

Intervention  for  humanity,  or  humanitarian  inter- 
vention7 as  it  is  more  properly  called,  is  also  an  in- 
stance of  intervention  for  the  purpose  of  vindicating 
the  law  of  nations  against  outrage.  For  it  is  a  basic 
principle  of  every  human  society  and  the  law  which 
governs  it  that  no  member  may  persist  in  conduct  which 
is  considered  to  violate  the  universally  recognized 

abroad  is  concerned."     (Oppenheim:    International  Law,  2 
ed.,  1912,  vol.  I,  §  135,  p.  192.) 

7This  is  the  expression  used  by  Hall  (4  ed.,  p.  304).  ''Hu- 
manitarian," "for  humanity"  and  "on  the  ground  of  hu- 
manity" are  in  general  use.  Moore  (Digest,  vol.  VI,  p.  3) 
uses  removal  of  "abhorrent  conditions."  "Against  im- 
moral acts"  is  sometimes  employed. 


52  INTERNATIONAL  POLICE 

principles  of  decency  and  humanity.8  In  our  national 
law,  the  offender  is  arrested  and  punished  for  disorder- 
ly conduct.  In  certain  associations  he  would  be  ex- 
pelled, but  international  society  cannot  so  easily  be  rid 
of  the  culprit.  It  is  necessary  either  to  assume  the 


8That  the  flagrant  and  persistent  violation  of  the  recognized 
principles  of  humanity  is  a  violation  of  international  law,  as 
well  as  of  international  morality,  is  indicated  by  the  preamble 
of  the  Hague  Convention  Respecting  the  Laws  and  Customs 
of  War  on  Land,  which  declares :  "Until  a  more  complete  code 
of  the  laws  of  war  is  issued,  the  high  contracting  parties  think 
it  right  to  declare  that  in  cases  not  included  in  the  Regulations 
adopted  by  them,  populations  and  belligerents  remain  under 
the  protection  and  empire  of  the  principles  of  international 
law,  as  they  result  from  the  usages  established  between  civil- 
ized nations,  from  the  laws  of  humanity,  and  the  requirements 
of  the  public  conscience." 

The  presumption  in  favor  of  the  rectitude  and  legality  of 
the  action  of  the  sovereign  will  not  be  impaired  by  an  occasion- 
al abuse  and  instance  of  inhumane  action.  We  must  admit 
that  international  law  does  not  afford  any  machinery  for  cor- 
recting such  occasional  abuses.  In  the  absence  of  an  effective 
sanction  under  international  law  to  remedy  these  occasional 
abuses,  we  might  not  be  justified  in  classing  them  as  violations 
of  international  law.  They  are,  nevertheless,  violations  of 
international  morality.  The  example  indicates  the  important 
distinction  which  must  always  be  drawn  between  international 
morality,  which  is  a  matter  left  to  the  conscience  of  the  sepa- 
rate states  and  to  the  citizens  responsible  for  the  government 's 
conduct,  and  international  law,  which  is  law  because  there  ex- 
ists an  effective  procedure  which  is  generally  employed  to  en- 
force it. 

Rougier,  in  his  interesting  study  of  humanitarian  interven- 
tion, considers  that  it  is  necessary  to  find  a  law  for  the  enforce- 
ment of  which  intervention  is  undertaken  (Revue  generate, 
1910,  vol.  17,  p.  478),  and  he  finds  this  law  in  the  solidarity  of 
mankind.  It  is  much  simpler  and  more  in  accord  with  the 
fundamental  principles  to  recognize  that  such  cases  of  inter- 
vention are  instances  in  which  international  law  is  being  en- 
forced, since  international  law  includes  certain  universally 
recognized  rules  of  decent  conduct  in  the  treatment  of  human 
beings,  and  guarantees  to  them  a  minimum  of  rights.  This 
question  is  more  fully  discussed  hereafter. 


HUMANITARIAN  INTERVENTION  53 

burden  of  the  administration  of  the  territory,  or  to  con- 
strain the  unworthy  sovereign  to  mend  his  ways. 

Professor  Arntz  saw  this  clearly  and  recognized  as 
one  of  two  grounds  justifying  intervention  in  the  in- 
ternal affairs  of  another  state  the  situation  when  its 
institutions  "make  impossible  the  regular  coexistence 
of  the  states"  (Revue  internationale,  1876,  vol.  8,  p. 
674).  The  importance  of  humanitarian  intervention 
and  the  inadequate  consideration  which  it  has  received 
oblige  us  to  enter  into  a  somewhat  full  discussion  of  the 
principles  as  indicated  by  the  practice  of  states. 

Humanitarian  intervention  may  be  defined  as  the 
reliance  upon  force  for  the  justifiable  purpose  of  pro- 
tecting the  inhabitants  of  another  state  from  treatment 
which  is  so  arbitrary  and  persistently  abusive  as  to  ex- 
ceed the  limits  of  that  authority  within  which  the  sov- 
erign  is  presumed  to  act  with  reason  and  justice.9 

Westlake  states  the  basic  idea  of  humanitarian  inter- 
vention and  at  the  same  time  refutes  the  sterile  doc- 
trine of  absolute  non-intervention:  "In  considering 

9Rougier  defines  intervention  on  the  ground  of  humanity  as 
follows:  "The  theory  of  intervention  on  the  ground  of  hu- 
manity is  properly  that  which  recognizes  the  right  of  one  state 
to  exercise  an  international  control  over  the  acts  of  another  in 
regard  to  its  internal  sovereignty  when  contrary  to  the  laws 
of  humanity.  It  applies  also  to  the  effort  to  place  this  action 
upon  a  juridical  basis."  (Translated  from  Theorie  de  1'in- 
tervention  d  'humanite ;  Revue  generate  du  droit  international 
1910,  vol.  17,  p.  472.) 

Professor  Arntz  gives  the  following  definition:  "When  a 
government,  although  acting  within  its  rights  of  sovereignty, 
violates  the  rights  of  humanity,  either  by  measures  contrary 
to  the  interests  of  other  States,  or  by  an  excess  of  cruelty  and 
injustice,  which  is  a  blot  on  our  civilization,  the  right  of  in- 
tervention may  lawfully  be  exercised,  for,  however  worthy 
of  respect  are  the  rights  of  state  sovereignty  and  indepen- 
dence, there  is  something  yet  more  worthy  of  respect,  and  that 
is  the  right  of  humanity  or  of  human  society,  which  must  not 
be  outraged."  (Translation  taken  from  F.  W.  Payn:  Crom- 
well on  Foreign  Affairs,  p.  72.  The  French  original  will  be 
found  in  Revue  du  droit  international,  1876,  vol.  8,  p.  675.) 


54  INTERNATIONAL  POLICE 

anarchy  and  misrule  as  a  ground  for  intervention  the 
view  must  not  be  confined  to  the  physical  consequences 
which  they  may  have  beyond  the  limits  of  the  territory 
in  which  they  rage.    Those  are  often  serious  enough, 
such  as  the  frontier  raids  in  which  anarchy  often  boils 
over,  or  the  piracy  that  may  arise  in  seas  in  which  an 
enfeebled  government  can  no  longer  maintain  the  rule 
of  law.    The  moral  effect  on  the  neighboring  popula- 
tions is  to  be  taken  into  the  account.    Where  these  in- 
clude considerable  numbers  allied  by  religion,  language 
or  race  to  the  populations  suffering  from  misrule,  to 
restrain  the  former  from  giving  support  to  the  latter 
in  violation  of  the  legal  rights  of  the  misruled  state 
may  be  a  task  beyond  the  power  of  their  government, 
or  requiring  it  to  resort  to  modes  of  constraint  irksome 
to  its  subjects,  and  not  necessary  for  their  good  order 
if  they  were  not  excited  by  the  spectacle  of  miseries 
which  they  must  feel  acutely.    It  is  idle  to  argue  in  such 
a  case  that  the  duty  of  the  neighboring  peoples  is  to 
look  on  quietly.    Laws  are  made  for  men  and  not  crea- 
tures of  the  imagination,  and  they  must  not  create  or 
tolerate  for  them  situations  which  are  beyond  the  en- 
durance, we  will  not  say  of  average  human  nature, 
since  laws  may  fairly  expect  to  raise  the  standard  by 
their  operation,  but  of  the  best  human  nature  that  at 
the  time  and  place  they  can  hope  to  meet  with. ' '  (West- 
lake:  International  Law,  vol.  I,  p.  319-320.) 

President  Roosevelt  in  1904  wrote:  "Brutal  wrong- 
doing, or  impotence,  which  results  in  the  general  loos- 
ening of  the  ties  of  civilized  society  may  finally  require 
intervention  by  some  civilized  nation,  and  in  the  West- 
ern Hemisphere  the  United  States  cannot  ignore  its 
duty."  (J.  B.  Moore:  Principles  of  American  Diplo- 
macy, p.  262;  cf.  similar  statement  in  Roosevelt's  An- 
nual Message,  December  6,  1904.) 
Similarly,  that  great  political  thinker,  Captain  Ma- 


HUMANITARIAN  INTERVENTION  55 

ban,  referring  to  the  parable  in  the  Bible,  wrote :  ' '  that 
the  possession  of  power  is  a  talent  committed  in  trust, 
for  which  account  will  be  exacted;  and  that,  under 
some  circumstances,  an  obligation  to  repress  evil  ex- 
ternal to  its  borders  rests  upon  a  nation,  as  surely  as 
responsibility  for  the  slums  rests  upon  the  rich  quarters 
of  a  city."  (Mahan:  Some  Neglected  Aspects  of  War, 
1900,  p.  107.) 

The  legality  of  humanitarian  intervention  has  the 
support  of  many  authorities.  The  author  of  the  Vin- 
dicae  Contra  Tyrannos,  published  in  1579  at  the  time 
of  the  religious  wars  in  France,  justifies  interference 
"in  behalf  of  neighboring  peoples  who  are  op- 
pressed on  account  of  adherence  to  the  true  religion 
or  by  any  obvious  tyranny"  (W.  A.  Dunning:  Political 
Theories  from  Luther  to  Montesquieu,  p.  55).  Since 
that  time,  a  host  of  authorities  have  incidentally 
touched  upon  humanitarian  intervention  and  recorded 
their  approval  of  it.  Only  one  of  these,  as  far  as  I  am 
aware,  has  made  a  thorough  study  of  this  important 
institution.10  The  list  of  the  authorities  who  recognize 
the  legality  of  humanitarian  intervention  includes: 
Grotius,  Wheaton,  Heiberg,  Woolsey,  Bluntschli,  West- 
lake,  and  many  others.11 

10Antoine  Rougier:  La.  theorie  de  I'intervention  d'hu- 
manite,  Revue  generate,  1910,  vol.  17,  p.  468-526. 

"For  the  convenience  of  the  student,  we  have  listed  here 
some  of  the  more  important  references  to  these  expressions  of 
opinion.  Some  of  them  will  be  found  also  quoted  in  the  pages 
of  this  volume :  Grotius,  Bk.  II,  ch.  XX,  XL ;  Vattel,  Bk.  II, 
§  56  (but  cf.  Ibid,  §§  7,  55);  Heiberg:  Nichtintervention, 
p.  14-15;  K.  von  Rotteck  (see  H.  von  Rotteck:  Einmischung- 
srecht,  p.  11,  36);  Heffter:  Volkerrecht,  §  45;  Woolsey: 
International  Law,  1  ed.,  1860,  §  42,  p.  91 ;  Ibid,  §  50,  p.  111- 
112;  Woolsey,  6  ed.,  §  43,  p.  45,  paragraph  two;  Ibid,  §  51,  p. 
55;  Ibid,  §  116,  p.  178,  last  paragraph;  Ibid,  §  20  a,  p.,  19; 
Bluntschli:  Volkerrecht,  §  478,  note,  §  471  and  note;  Arntz 
and  Rolin-Jacquemyns :  in  Revue  de  droit  international,  vol. 
8,  1876,  p.  675 ;  Creasy :  First  Platform  of  International  Law, 


56  INTERNATIONAL  POLICE 

In  1625  Hugo  Grotius  wrote :  *  *  There  is  also  another 
question,  whether  a  war  for  the  subjects  of  another  be 
just,  for  the  purpose  of  defending  them  from  injuries 
inflicted  by  their  ruler.  Certainly  it  is  undoubted  that 
ever  since  civil  societies  were  formed,  the  rulers  of 
each  claimed  some  especial  right  over  his  own  subjects. 
Euripides  makes  his  characters  say  that  they  are  suf- 
ficient to  right  wrongs  in  their  own  city.  And  Thucy- 
dides  puts  among  the  marks  of  empire,  the  supreme 
authority  in  judicial  proceedings.  And  so  Virgil,  Ovid, 
and  Euripides  in  the  Hippolytus.  This  is,  as  Ambrose 
says,  that  peoples  may  not  run  into  wars  by  usurping 
the  care  for  those  who  do  not  belong  to  them.  The  Cor- 
inthians in  Thucydides  say  that  it  is  right  that  each 
state  should  punish  its  own  subjects.  And  Perseus 
says  that  he  will  not  plead  in  defense  of  what  he  did 
against  the  Dolopians,  since  they  were  under  his  au- 
thority and  he  had  acted  upon  his  right.  But  all  this 
applies  when  the  subjects  have  really  violated  their 
duty ;  and  we  may  add,  when  the  case  is  doubtful.  For 
that  distribution  of  power  was  introduced  for  that 
case. 

"But  the  case  is  different  if  the  wrong  be  manifest. 
If  a  tyrant  like  Busiris,  Phalaris,  Diomede  of  Thrace, 
practises  atrocities  towards  his  subjects,  which  no  just 

§  308,  p.  297 ;  Hall :  International  Law,  4  ed.,  §  92,  p.  302-3 
(Hall  bears  unwilling  testimony.  Cf.  Ibid,  §  92,  p.  302-3) ; 
Sheldon  Amos:  Political  and  Legal  Remedies  for  War,  p. 
158;  T.  S.  Woolsey:  America's  Foreign  Policy,  p.  75-6;  E. 
J.  Phelps,  formerly  American  Minister  to  England,  in  the 
New  York  Herald,  March  28,  1898 ;  W.  E.  Lingelbach :  Inter- 
vention in  Europe,  in  Annals  of  the  American  Academy  of 
Political  and  Social  Science,  July,  1900,  vol.  16,  p.  25 ;  A. 
Fillet:  Principes  de  droit  international  prive,  Paris,  1903, 
p.  171;  Rivier:  Principes,  vol.  I,  p.  256;  Kebedgy:  Inter- 
vention, p.  78  f . ;  A.  Rougier,  in  Revue  generate  du  droit  in- 
ternational public,  vol.  17,  1910,  p.  475,  passim;  Hodges:  In- 
tervention, p.  91  f. 


HUMANITARIAN  INTERVENTION  57 

man  can  approve,  the  right  of  human  social  connection 
is  not  cut  off  in  such  a  case.  So  Constantine  took  arms 
against  Maxentius  and  Licinius;  and  several  of  the 
Eoman  emperors  took  or  threatened  to  take  arms 
against  the  Persians,  except  they  prevented  the  Chris- 
tians being  persecuted  on  account  of  their  religion." 
(Grotius:  De  Jure  Belli  et  Pacis,  Bk.  II,  chap.  XXV, 
VIII,  §<§  1,  2,  Whewell's  Translation,  Vol.  II:  p.  438- 


In  a  recent  work  by  Professor  Edwin  M.  Borchard, 
we  find  a  clear  and  emphatic  statement.  Bef  erring  to 
the  minimum  of  rights  which  individuals  enjoy  under 
international  law,  this  author  remarks:  "This  view,  it 
would  seem,  is  confirmed  by  the  fact  that  where  a  state 
under  exceptional  circumstances  disregards  certain 
rights  of  its  own  citizens,  over  whom  presumably  it  has 
absolute  sovereignty,  the  other  states  of  the  family  of 
nations  are  authorized  by  international  law  to  inter- 
vene on  the  grounds  of  humanity.  When  these  'human' 
rights  are  habitually  violated,  one  or  more  states  may 
intervene  in  the  name  of  the  society  of  nations  and  may 
take  such  measures  as  to  substitute  at  least  tempor- 
arily, if  not  permanently,  its  own  sovereignty  for  that  of 
the  state  thus  controlled."  (Edwin  M.  Borchard:  The 
Diplomatic  Protection  of  Citizens  Abroad,  New  York, 
1915,  p.  14.) 

After  the  reader  has  examined  the  instances  which 
we  shall  present,  he  can  hardly  fail  to  agree  with  the 
conclusion  of  Professor  Theodore  S.  Woolsey,  who 
studied  this  question  in  relation  to  the  intervention  of 
the  United  States  in  Cuba.  Mr.  Woolsey  writes: 
'  *  That  intervention  on  the  ground  of  humanity  is  justi- 
fiable is  a  matter  of  precedent,  then,  as  well  as  a  theory. 
And  so  far  as  facts  go,  our  action  in  behalf  of  Cuba  is 
as  fair  an  instance  of  it  as  any  of  the  earlier  exam- 


58  INTERNATIONAL  POLICE 

pies."     (Theodore  S.  Woolsey:    American  Foreign 
Policy,  New  York,  1898,  p.  75-6.) 

Certain  other  publicists  have,  it  is  true,  looked  askance 
at  humanitarian  intervention,  and  even  gone  so 
far  as  to  deny  its  legality.12  Starting  from  the  premise 
of  the  independence  of  states,  they  fear  to  recognize 
the  right  of  another  state  to  step  in  as  a  policeman, 
even  though  a  neighbor  state  should  treat  its  nationals 
in  a  barbarous  manner.  Instead,  they  would  proclaim 
as  sacred  and  inviolable  the  right  of  every  state  to 
regulate  its  internal  affairs  and  then  condone  as 
excusable  violations  of  the  law  such  corrective  inter- 


12 Among  the  authorities  who  deny  the  legality  of  humani- 
tarian intervention  are  the  following :  Angelius  Werdenhagen 
(according  to  Esmein's  statement  in  Nouvel  revue  historique 
de  droit  francais  et  etranger,  vol.  24  (1900),  (p.  574),  in  his 
criticism  of  the  work  of  Bodin;  Vattel:  Bk.  II,  §§7,  55. 
(But  cf.  Ibid,  §  56.)  Nassau  Senior,  in  1843,  discussing  the 
rights  of  subjects  against  their  princes,  declares,  "Accord- 
ing to  modern  international  law,  it  appears  to  be  doubtful 
whether  a  nation  has  any  rights  against  its  sovereign;  it  is 
certain  that,  if  it  had  any,  they  are  rights  which  no  third  party 
is  justified  in  supporting."  (Edinburg  Review,  April,  1843, 
vol.  156,  p.  365.  On  the  following  page  (p.  366)  Senior  criti- 
cizes the  manner  in  which  the  plea  of  humanity  is  made  to 
cloak  selfish  designs.)  See  also,  Phillimore:  Commentaries, 
1  ed.,  1854,  vol.  I,  §  394,  p.  441-2;  (It  is  hard  to  discover 
Phillimore 's  real  opinion).  Mountague  Bernard :  Non-inter- 
vention, p.  16-20;  Halleck:  International  Law,  ch.  IV,  §  9, 
p.  86-7;  ch.  XIV,  §  21,  p.  340  (quotes  Phillimore,  but  recog- 
nizes the  influence  of  humanitarian  considerations)  ;  Strauch: 
Interventionslehre,  p.  13-14 ;  Gareis :  Institutions  des  Volker- 
reehts  (1888),  §  26,  p.  84;  Funk-Brentano  et  Sorel:  Precis,  p. 
223;  Rougier,  who  affirms  the  existence  of  a  legal  right  of 
humanitarian  intervention,  nevertheless  remarks  upon  the 
danger  with  which  it  is  beset.  He  writes :  "It  must  be  recog- 
nized that  the  ground  of  humanity  is  the  most  delicate  of  the 
causes  which  may  be  expected  to  justify  the  right  of  inter- 
vention and  that  it  raises  juridical  difficulties  in  regard  to 
the  basis  and  the  extent  of  this  right."  (Translated  from  A. 
Rougier:  Theorie  de  1 'intervention  d'humanite,  Revue  gen- 
erate, vol.  17  (1910),  p.  478.) 


HUMANITARIAN  INTERVENTION  59 

vention  as  another  state,  urged  on  by  public  opinion, 
might  undertake.13 

But  why,  we  may  ask,  should  the  independence  of  a 
state  be  more  sacred  than  the  law  which  gives  it  that 
independence?  Why  adopt  a  system  which  makes  it 

13It  may  be  of  interest  to  the  reader  to  refer  to  the  authors 
who  deny  the  legality  of  humanitarian  intervention  in  law,  but 
who  condone  it  to  a  greater  or  less  degree  in  practice. 

In  the  first  place,  there  is  Vattel,  whom  we  have  given  in  the 
preceding  note  as  an  authority  opposed  to  the  legality  of  inter- 
vention on  the  ground  of  humanity:  yet  we  might  transfer 
him  to  the  opposite  camp,  for  he  no  sooner  denies  the  right 

" to  force  him  [the  erring  sovereign]  to  follow  a  wiser 

and  juster  course, ' '  than  he  adds,  ' '  Prudence  will  suggest  the 
times  when  it  [a  foreign  state]  may  interfere  to  the  extent  of 
making  friendly  representations."  (Vattel,  Bk.  II,  §  55,  Car- 
negie translation,  p.  131).  But  as  a  diplomat  and  practical 
man  of  affairs,  Vattel  must  have  known  that  such  "represen- 
tations" are  always  irritating,  and  hence  not  made  unless 
there  is  the  possibility  which  may  become  a  probability  that 
they  will  be  followed  up  by  stronger  measures.  Consequently, 
we  must  consider  this  remark  to  be  either  without  significance, 
or  a  justification,  of  humanitarian  intervention  when  it  can  be 
undertaken  in  such  a  manner  as  to  be  beneficial  and  effective, 
and  this  qualification  is  always  understood  as  limiting  every 
obligation  to  undertake  intervention.  What  Vattel  says  in  re- 
gard to  the  right  to  intervene  in  a  civil  war  (Bk.  II,  §  56,  Car- 
negie translation,  p.  131)  may  also  be  regarded  as  a  qualifi- 
cation of  his  denial  of  humanitarian  intervention. 

In  a  list  of  the  alleged  grounds  of  intervention  which  Pro- 
fessor Bernard  puts  in  the  form  of  interrogations,  he  asks, 
"May  intolerable  scandals  to  public  morality,  heinous  crimes 
against  humanity  and  justice,  obstinate  and  fruitless  civil 
wars,  authorize  great  powers  to  step  in  and  assume,  for  the 
public  good,  a  kind  of  police  jurisdiction  over  the  offending 
state?"  (Non-intervention,  p.  24.)  But  instead  of  a  categori- 
cal answer,  Bernard  only  gives  us  some  general  observations 
which  apply  to  all  the  grounds  of  intervention.  If  we  combine 
what  Bernard  says  on  pages  7  and  24,  we  find  that  he  admits 
that  there  may,  no  doubt,  be  cases  in  which  the  principle  that 
states  are  members  of  a  community  united  by  a  social  tie 
ought  to  prevail  over  the  principle  that  states  are  severally 
sovereign  or  independent.  Yet,  with  apparent  lack  of  consis- 
tency, he  argues,  "...but  the  more  closely  we  examine  the 


60  INTERNATIONAL  POLICE 

necessary  to  gloss  over  constant  violations  of  the  very 
principles  which  are  declared  to  be  most  worthy  of  re- 
spect from  all?  If,  where  such  intolerable  abuses  do 
occur,  it  be  excusable  to  violate  at  one  and  the  same 


matter,  the  clearer,  I  think,  will  be  our  conviction  that  the 
first  and  highest  interest  of  the  great  commonwealth  of  States 
itself  is  the  independence  of  its  several  members,  the  stronger 
our  reluctance  to  admit  exceptional  cases."  (Ibid,  p.  24.) 

In  another  place  where  Bernard  discusses  the  alleged  bene- 
fits of  intervention,  he  declares,  "But,  in  fact,  good  is  hardly 
ever  done  by  it — good,  I  mean,  in  any  degree  commensurate 
with  the  evil.  On  the  contrary,  even  when  it  dethrones  a 
tyrant,  puts  an  end  to  a  ruinous  anarchy,  or  stanches  the  ef- 
fusion of  blood,  in  a  civil  war  it  has  a  direct  tendency  to  pro- 
duce mischief  worse  than  it  removes."  (Ibid,  p.  9.) 

Now,  on  the  whole,  this  would  seem  to  be  a  condemnation 
and  denial  of  the  legality  of  humanitarian  intervention.  Yet 
Bernard  indicates  that  he  does  not  mean  to  apply  his  remarks 

to  states "  which  labor  under  an  incurable  incapacity  to 

govern."  (Ibid,  p.  7.)  Now  since  it  is  in  the  case  of  such 
states  that  humanitarian  intervention  is  usually  applied,  this 
concession  robs  Bernard's  statement  of  much  of  its  force. 

Sir  Vernon  Harcourt  must  probably  be  classed  as  one  of  the 
authorities  who  adopts  the  doctrine  of  moral  justification,  for 
in  his  discussion  of  intervention,  he  declares:  "Intervention 
is  a  question  rather  of  policy  than  of  law.  It  is  above  and  be- 
yond the  domain  of  law,  and  when  wisely  and  equitably  han- 
dled by  those  who  have  the  power  to  give  effect  to  it,  may  be  the 
highest  policy  of  justice  and  humanity."  (Historicus:  Let- 
ters on  Some  Questions  of  International  Law,  1863,  p.  14.) 

Hall  (4  ed.,  §  92,  p.  302-5;  also  p.  307-8)  must  probably  be 
classed  as  an  authority  who  denies  the  right  of  humanitarian 
intervention,  but  he  seems  to  admit  that  the  weight  of  au- 
thority and  the  practice  of  states  is  at  variance  with  his  views. 
He  implies  (p.  304)  that  even  had  his  view  been  adopted,  in- 
tervention would  be  legal  when  "the  whole  body  of  civilized 
states  have  concurred  in  authorizing  it."  That  is  to  say,  in 
order  to  avoid  abuse,  he  would  restrict  certain  classes  of  inter- 
vention, including  that  for  humanity,  to  instances  when  they 
were  undertaken  by  the  collectivity  of  the  more  important 
powers.  Any  intervention  underaken  by  a  separate  power 
would  then,  he  thinks,  have  had  to  be  justified  "...  as 
measures  which  being  confessedly  illegal  in  themselves,  could 
only  be  excused  in  rare  and  extreme  cases  in  consideration  of 
the  unquestionably  extraordinary  character  of  the  facts  caus- 


HUMANITARIAN  INTERVENTION  61 

time  the  independence  of  a  neighbor  and  the  law  of 
nations,  can  such  a  precedent  of  disrespect  for  law 
prove  less  dangerous  to  international  security  than  the 
recognition  of  the  right,  when  circumstances  justify,  to 

ing  them,  and  of  the  evident  purity  of  the  motives  and  conduct 
of  the  intervening  state. ' ' 

But  even  this  qualification  is  not  left  unqualified,  for  Hall 
seems  to  take  back  what  he  has  said.  A  few  pages  further  along 
(§  95,  p.  308),  he  writes,  "There  is  fair  reason,  consequently, 
for  hoping  that  intervention  by,  or  under  the  sanction  of,  the 
body  of  states  on  grounds  forbidden  to  single  states,  may  be 
useful  and  even  beneficent.  Still,  from  the  point  of  view  of 
law,  it  is  always  to  be  remembered  that  states  so  intervening 
are  going  beyond  their  legal  powers.  Their  excuse  or  their 
justification  can  only  be  a  moral  one. ' '  When  the  master  be- 
comes thus  involved  in  contradiction,  I  submit  that  there  is,  to 
use  his  own  expression,  "...  fair  reason . .  "  to  consider  that  he 
has  attempted  to  defend  a  bad  cause. 

We  catch  a  reflection  of  Hall's  errors  in  Oppenheim's  dis- 
cussion of  humanitarian  intervention  (International  Law,  2 
ed.,  vol.  I,  p.  194-5).  After  admitting  "that  the  Powers  have 
in  the  past  exercised  intervention  on  these  grounds  [humani- 
ty], there  is  no  doubt,"  he  asserts,  that  it  "may  well  be 
doubted . .  "  "  . .  whether  there  is  really  a  rule  of  the  Law 
of  Nations  which  admits  such  interventions."  "Yet,"  he 
adds,  "on  the  other  hand,  it  cannot  be  denied  that  public 
opinion  and  the  attitude  of  the  powers  are  in  favor  of  such 

interventions "  In  a  footnote,  he  refers  to  Hall  (§§ 

91  and  95),  "where  the  merits  of  the  problem  are  discussed 
from  all  sides. "  §  91  is  probably  an  error  for  §  92. 

Lawrence:  Principles  of  International  Law,  4  ed.,  §  66,  p. 
129,  has  stated  this  doctrine  so  persuasively  as  almost  to  over- 
come its  inconsistency.  He  writes: 

"Should  the  cruelty  be  so  long  continued  and  so  revolting 
that  the  best  instincts  of  human  nature  are  outraged  by  it, 
and  should  an  opportunity  arise  for  bringing  it  to  an  end  and 
removing  its  cause  without  adding  fuel  to  the  flame  of  the 
conflict,  there  is  nothing  in  the  law  of  nations  which  will 
brand  as  a  wrongdoer  the  state  that  steps  forward  and  under- 
takes  the  necessary  intervention.  Each  case  must  be  judged 
on  its  own  merits.  There  is  a  great  difference  between  de- 
claring a  national  act  to  be  legal,  and  therefore  part  of  the 
order  under  which  states  have  consented  to  live,  and  allowing 
it  to  be  morally  blameless  as  an  exception  to  ordinary  rules. 
A  state  may,  in  a  great  emergency,  set  aside  everyday  re- 


62  INTERNATIONAL  POLICE 

ignore  that  independence  which  is  the  ordinary  rule  of 
state  life?  In  any  event,  we  find  support  for  the  view 
we  hold  from  the  weighty  authorities  to  whom  we  have 
referred,  and  we  may  feel  still  more  certain  of  our 
ground  after  we  have  examined  the  various  instances 
in  which  the  powers  have  intervened  to  prevent  a  neigh- 
bor from  continuing  to  commit  such  abuses  as  consti- 
tuted a  violation  of  the  universally  recognized  and  gen- 
erally respected  rules  of  decent  state  conduct.  And 
when  so  acting,  the  intervening  states  have  proclaimed 
the  legality  of  their  course. 

States  have  most  frequently  undertaken  intervention 
wholly  or  partially  on  the  ground  of  humanity  in  some 
one  of  the  circumstances  which  we  shall  now  pass  in 
review.14 


straints ;  and  neither  in  its  case  nor  in  a  corresponding  case  of 
individual  conduct  will  blame  be  incurred.  But,  nevertheless, 
the  ordinary  rule  is  good  for  ordinary  cases,  which,  after  all, 
make  up  at  least  ninety-nine  hundredths  of  life.  To  say  that 
it  is  no  rule  because  it  may  laudably  be  ignored  once  or  twice 
in  a  generation,  is  to  overturn  order  in  an  attempt  to  exalt  vir- 
tue. An  intervention  to  put  a  stop  to  barbarous  and  abom- 
inable cruelty  is  'a  high  act  of  policy  above  and  beyond  the 
domain  of  law.'  ' 

"Perhaps  we  should  here  refer  to  another  attempt  to  dis- 
cover a  satisfactory  basis  for  recourse  to  humanitarian  inter- 
vention: The  doctrine  of  "international  nuisance"  is  built 
upon  the  analogy  of  the  common  law  right  to  remove  a  nui- 
sance. In  his  "Principles  of  American  Diplomacy"  (p.  208), 
Professor  John  Bassett  Moore  adopts  this  view.  The  inter- 
vention of  the  United  States  in  Cuba,  he  declares,  "  . .  .rested 
upon  the  ground  that  there  existed  in  Cuba  conditions 
so  injurious  to  the  United  States,  as  a  neighboring  nation, 
that  they  could  no  longer  be  endured.  Its  action  was  analo- 
gous to  what  is  known  in  private  law  as  the  abatement  of  a 
nuisance.  On  this  ground  the  intervention  was  justified  by 
the  late  Alphonse  Rivier,  one  of  the  most  eminent  publicists  in 
Europe,  and  on  this  ground  its  justification  must  continue  to 
rest."  (John  Bassett  Moore:  The  Principles  of  American 
Diplomacy,  New  York,  1918,  p.  208.) 


PERSECUTION  63 

§  8 (a).    PERSECUTION 

Governmental  persecution  may  be  sufficiently  gross 
to  amount  to  inhumane  conduct.  Particularly  frequent 
have  been  the  instances  of  intolerance,  that  is,  the 
denial  to  large  numbers  of  persons  of  the  liberty  to 
profess  their  religion. 

The  French  occupation  of  Syria  from  August,  1860, 
to  June,  1861,  was  an  incident  typical  of  humanitarian 
intervention  to  prevent  religious  persecution.  The 
Druses,  in  May,  1860,  had  massacred  some  six  thou- 
sand Christian  Maronites  without  any  efforts  on  the 
part  of  the  Porte  to  fulfil  its  obligations  to  protect  the 
victims.  Further  massacres  ensued  shortly  after,  and 
stirred  the  sympathy  of  Europe.  It  was  felt  that  the 

But  the  analysis  of  the  principles  governing  this  case  and 
the  study  of  precedents  do  not  support  this  view.  As  far  as 
the  United  States  was  concerned,  there  is  no  reason  to  believe 
that  it  would  not  have  been  possible  to  endure  for  several 
years  more  the  distressing  conditions  in  the  neighboring  isle, 
and  the  advantage  of  respecting  the  principle  of  non-inter- 
ference in  the  affairs  of  a  neighbor  and  the  avoidance  of  a 
war  would  have  been  more  than  ample  to  outweigh  the  incon- 
veniences of  the  Cuban  situation.  The  diplomatic  correspond- 
ence relative  to  Cuba  (Foreign  Relations,  1896,  1897,  1898) 
does  not  bear  out  the  assertion  that  the  intervention  of  the 
United  States  was  principally  actuated  by  the  motive  of  self- 
interest.  Had  self-interest  been  really  the  basis  of  the  action 
taken,  intervention  in  Cuba  would  have  been  merely  an  in- 
stance of  interposition  in  defense  of  American  rights.  ' '  Inter- 
national nuisance"  is  not  a  happy  designation  for  the  reason 
that  self -execution,  which  is  characteristic  of  the  abatement  of 
a  nuisance,  is  in  international  law  the  usual  method  for  en- 
forcing rights.  We  shall  again  have  occasion  to  refer  to  this 
intervention. 

Other  authorities  who  recognize  humanity  as  a  just  ground 
of  intervention  would  prevent  the  abuses  which  in  their 
opinion  are  likely  to  result  therefrom  by  limiting  it  to  the 
collective  action  of  several  states.  Still  others  believe  that 
the  action  of  the  intervening  state  can  only  be  justified  when 
it  is  disinterested.  Desirable  as  it  is  that  humanitarian  inter- 
vention should  be,  whenever  possible,  both  disinterested  and 
collective,  this  cannot  be  made  a  condition  for  the  justification 


64  INTERNATIONAL  POLICE 

obligation  of  intervening  could  not  b<j  avoided,  and  on 
August  3,  1860,  the  ambassadors  of  the  five  great 
powers  and  Turkey  signed  at  the  Quai  D'Orsay  a  pro- 
tocol (agreement)  for  the  dispatch  of  troops  to  Syria 
and  the  policing  of  the  coast  of  Syria  by  the  warships 
of  the  signatory  powers.  In  its  form  the  agreement 
provided  for  cooperation  with  Turkey  because  certain 
powers  wished  to  sustain  in  every  way  the  rights  of 
Turkish  sovereignty.  For  the  same  reason,  care  was 
taken  in  the  agreement  to  preserve  the  collective  char- 
acter of  the  action,  although  in  fact  France  supplied 
the  6000  troops  necessary,  and  was  the  power  most 
active  in  insisting  that  action  be  taken  to  succor  the 
victims  of  Mohammedan  fanaticism.  The  fear  that 
France  might  take  advantage  of  her  intervention  to 
secure  special  advantages  was  met  by  the  adoption  of 
a  protocol  of  the  same  date  (August  3)  by  which  the 
representatives  of  the  powers  declared  the  disinter- 
estedness of  their  governments  and  their  intention  not 
to  seek  "any  territorial  advantage,  any  exclusive  in- 

of  the  action  taken.  In  the  first  place,  because  the  practice  of 
states  is  not  in  accord  with  this  theory.  States  are  not  gener- 
ally willing  to  incur  the  burdens  of  intervention,  even  on  the 
appealing  ground  of  humanity,  unless  they  are  also  actuated 
by  other  and  more  selfish  considerations.  In  the  second  place, 
the  adoption  of  this  rule  would  lead  to  so  many  violations  as 
to  indicate  and  in  time  to  establish  a  contrary  rule  in  harmony 
with  those  precedents.  Furthermore,  collective  intervention 
is  often  too  unwieldy  and  too  tardy  to  serve  as  a  practical 
method  of  procedure.  But  these  are,  property  speaking,  ques- 
tions of  international  procedure  which  do  not  fall  within  our 
discussion  of  the  grounds  upon  which  intervention  is  justified. 
We  shall,  therefore,  defer  their  consideration  until,  in  another 
volume,  we  are  able  to  consider  the  means  by  which  interven- 
tions are  carried  out. 

Certain  authorities  (Bernard:  Non-intervention,  p.  7; 
Strauch:  Interventions — Lehre,  p.  14;  Gareis:  Volkerrecht, 
§  26,  p.  85;  F.  de  Martens:  Volkerrecht  [Bergbohm's  Trans- 
lation] vol.  1,  §  76,  p.  303;  E.  D.  Dickinson:  Equality  of 


PERSECUTION  65 

fluence,  or  any  commerical  concession  for  their  sub- 
jects which  might  not  be  granted  to  the  subjects  of  all 
the  other  nations. ' '  Another  safeguard  was  the  limita- 
tion of  the  period  of  occupation  to  six  months.  At  that 
time,  the  British  Government  was  particularly  suspi- 
cious of  the  designs  of  Napoleon  III  and  very  anxious 
to  get  the  French  out  of  Syria  as  soon  as  possible.  To 
the  objection  that  there  was  danger  of  further  outrages, 
the  British  Ambassador  replied  that  the  presence  of 
foreign  vessels  would  exercise  a  sufficient  moral  in- 
fluence to  restrain  the  evil  passions  of  the  inhabitants 
of  the  Lebanon,  and  that  in  any  event,  nothing  could  be 
easier  than  to  land  a  part  of  their  crew,  if  necessary. 
(Cf.  Protocol  of  February  19,  1861,  LeClerq:  Traites 
de  la  France,  vol.  8,  p.  172.)  But  the  Russian  Ambassa- 
dor did  not  feel  that  this  measure  would  suffice,  and 
thought  it  necessary  to  prolong  the  occupation.  At  a 
later  conference  of  the  representatives  of  the  five 
powers,  held  March  15,  1861,  the  Russian  Ambassador 
supported  the  French  proposal  to  prolong  the  occupa- 

States,  p.  261-2)  consider  that  humanitarian  intervention  is 
to  be  applied  only  in  the  case  of  semicivilized  states  that  do 
not  enjoy  a  full  international  status.  It  is  true  that  these 
states  are  most  frequently  subjected  to  the  corrective  action 
of  humanitarian  intervention,  but  when  by  exception  a  civi- 
lized state  transgresses  the  dictates  of  humanity,  it  also  may 
be  constrained  to  reform  its  conduct. 

Professor  Kebedgy  remarks:  "In  addition  to  the  great 
difficulty  of  tracing  with  any  degree  of  accuracy  the  line  of 
demarcation  between  civilized  states  and  those  which  are  not, 
this  restriction  would  seem  to  be  useless,  for  why  should  we 
tie  our  hands  in  advance,  if  perchance  atrocities  should  come 
to  be  committed  by  the  sovereign  or  the  government  of  a  state 
which  would  be  called  civilized?  And  beside  might  it  not 
be  said  that  by  this  fact  alone  the  state  in  question  approxi- 
mated very  closely  the  condition  of  barbarous  states,  and 
that  it  would  consequently  lose  all  title  to  respect  for  its  inde- 
pendence?" (Translated  from  Kebedgy:  Intervention,  p. 
84-5.) 

5 


66  INTERNATIONAL  POLICE 

tion  for  three  months.  "This,  in  his  opinion,  was  a 
measure  which  would  allow  the  great  powers  to  re- 
spond to  the  urgent  appeal  made  to  them  on  the  ground 
of  humanity  and  at  the  same  time  to  protect  the  general 
interests  of  Europe  and  of  Turkey."  The  proposal 
was  adopted  and  at  the  expiration  of  the  period  agreed 
upon  the  French  withdrew,  and  on  June  9,  at  Constan- 
tinople, the  representatives  of  the  powers  agreed  to  the 
regulations  for  the  administration  of  the  Lebanon.15 

Although  the  Sultan  gave  his  official  consent  to 
this  occupation,  it  was  none  the  less  a  measure  to 
which  he  only  consented  through  constraint  and  a  de- 
sire to  avoid  worse.  It  is  therefore  an  instance  of  in- 
tervention, and  one  in  which  the  states  were  actuated 
by  motives  of  humanity  to  prevent  religious  persecu- 
tions which  took  the  form  of  massacres  of  the  Christian 
Maronites. 

Moser  (J.  J.  Moser:  Versucht  der  neuesten  europai- 
schen  Volkerrechts,  1778,  part  6,  chap.  6,  p.  96-7)  gives 
as  an  illustration  of  intercession  an  instance  in  which 
the  representations  addressed  by  the  British  and  Neth- 
erlands Governments  to  Maria  Theresa  were  so  vigor- 
ous as  to  exceed  mere  intercession  and  to  border  on 
intervention  in  favor  of  the  Jews  of  Prague.  Moser 
reproduces  Lord  Harrington's  instructions  of  March 
5,  1745,  to  the  British  Minister  at  Vienna  in  which  he 
directed  him  to  continue  to  make  the  strongest  efforts 

15This  account  is  based  on  that  given  in  Raymond  Robin : 
Des  Occupations,  p.  281-5,  and  The  Life  of  the  Marquis  of 
Dufferin,  vol.  I,  p.  98-121.  In  the  American  Historical  Review 
for  January,  1921,  p.  326,  Dr.  F.  S.  Bliss  reviews  Scheltema's 
The  Lebanon  in  Turmoil:  Syria  and  the  Powers  in  1860. 
Bliss  refers  to  Shurchill's  The  Druses  and  the  Maronites. 
The  documents  are  given  in  Le  Clerq:  Traites  de  la  France, 
vol.  8,  pp.  79,  101,  170,  210,  273-8.  Cf.  also  Ashley's  Life  of 
Palmerston:  Vol.  II,  p.  212,  showing  the  anxiety  of  the 
English  to  get  the  French  out  of  Syria. 


PERSECUTION  67 

to  prevail  upon  the  Queen  to  revoke  the  decree  expell- 
ing the  Jews  from  Prague.  The  dispatch  alludes  to  the 
representations  made  by  the  Dutch  Government  rela- 
tive to  the  same  matter.  (Moser  quotes  from  Mercure, 
1747,  vol.  I,  p.  363.) 

In  recent  times,  the  oppression  of  the  Jews  and  the 
many  instances  of  outrage  which  they  have  been  made 
to  suffer  afford  the  best  example  of  intolerance.  The 
persecution  of  the  Roumanian  Jews  has  elicited  a  series 
of  remarkable  interventions.  In  1867,  when  certain 
Jews  in  Boumania  were  made  the  victims  of  outrages, 
Lord  Stanley  in  his  dispatch  of  June  14  to  the  British 
representative  instructed  him:  "Her  Majesty's  Gov- 
ernment trust  that  your  expectations  may  be  realized, 
but  you  will  not  relax  your  exertions  to  induce  the  Wal- 
lachina  Government  to  protect  the  Jews  from  perse- 
cution, whatever  shape  it  may  assume,  or  whatever 
pretence  may  be  alleged  for  it.  You  will  call  special 
attention  to  the  observation  of  the  Prefect  of  Jassy, 
that  he  must  obey  the  orders  of  the  Minister  of  the  In- 
terior, unless  overriden  by  orders  from  Bucharest,  and 
you  will  urge  the  issue  of  direct  orders,  such  as  will 
admit  of  no  excuse  if  they  are  disregarded.  You  will 
press  on  the  Prince  that  the  attention  of  Europe  is  di- 
rected to  the  cruelties  practised  on  the  poorer  Jews  in 
Moldavia,  and  that  the  impression  on  foreign  govern- 
ments will  be  most  unfavorable  if  effectual  measures  are 
not  taken  to  put  an  end  to  them,  whether  they  originate 
in  arbitrary  acts  on  the  part  of  local  authorities,  or  in 
the  uncontrolled  license  of  the  Christian  population  of 
the  province."  (Parliamentary  Papers,  1867,  vol.  74 
[3890].) 

From  Paris,  the  French  Consulate  at  Jassy  had  re- 
ceived the  following  telegram  of  instructions:  "The 
persecutions  begun  against  the  Jews  at  Jassy  cause 
here  a  just  and  general  indignation.  Take  prompt  and 


68  INTERNATIONAL  POLICE 

energetic  steps  to  put  a  stop  to  an  iniquity  which  is  a 
dishonor  to  the  Roumanian  Government."  (Ibid.) 
The  Israelite  Community  at  Jassy,  on  June  16,  made 
the  following  report  of  conditions :  *  *  The  persecutions 
continue,  though  they  make  less  noise.  Commercial 
Jews  traveling  with  passports  not  in  order  are  thrown 
into  chains.  They  seize  upon  individuals  everywhere 
they  find  them,  always  under  the  excuse  of  their  being 
vagrants. 

"The  people  continue  their  hostile  and  menacing 
meetings;  and  if  the  process  of  the  projected  extirpa- 
tion of  the  Jews  is  no  longer  done  so  openly,  thanks  to 
the  intervention  of  the  High  Powers,  it  nevertheless  is 
continued  more  quietly  by  the  authorities,  who  deem 
the  will  of  the  Minister  to  be  higher  than  the  law. 

1  *  Bratiano  has  planned  the  destruction  of  our  race  in 
this  country."  (Ibid.) 

Under  the  date  of  April  10,  1872,  Secretary  of  State 
Fish  instructed  Mr.  Peixotto,  the  American  Consul  at 
Bucharest : 

"This  government  heartily  sympathizes  with  the 
popular  instinct  upon  the  subject,  and  while  it  has  no 
disposition  or  intention  to  give  offense  by  impertinent- 
ly interfering  in  the  internal  affairs  of  Roumania,  it  is 
deemed  to  be  due  to  humanity  to  remonstrate  against 
any  license  or  impunity  which  may  have  attended  the 
outrages  in  that  country.  You  are  consequently  autho- 
rized to  address  a  note  to  the  minister  of  foreign  affairs 
of  the  Principalities,  in  which  you  will  embody  the 
views  herein  expressed,  and  you  will  also  do  anything 
which  you  discreetly  can,  with  a  reasonable  prospect 
of  success,  toward  preventing  a  recurrence  or  continu- 
ance of  the  persecution  adverted  to."  (Moore's  Di- 
gest, Vol.  VI,  p.  360;  Foreign  Relations,  1872,  p.  688.) 

A  month  later  (May  13,  1872),  Mr.  Fish  approved 
the  action  of  Mr.  Peixotto  in  joining  in  a  remonstrance 


PERSECUTION  69 

addressed  by  the  representatives  of  the  foreign  powers 
at  Bucharest  to  the  representative  of  the  Principalities 
against  the  recent  maltreatment  of  Israelites.  The 
dispatch  in  part  read : 

"The  Department  approves  your  taking  part  in  that 
remonstrance.  Whatever  caution  and  reserve  may 
usually  characterize  the  policy  of  this  government  in 
such  matters  may  be  regarded  as  inexpedient  when 
every  guarantee  and  consideration  of  justice  appear  to 
have  been  set  at  defiance  in  the  course  pursued  with 
reference  to  the  unfortunate  people  referred  to.  You 
will  not  be  backward  in  joining  any  similar  protest,  or 
other  measure  which  the  foreign  representatives  there 
may  deem  advisable,  with  a  view  to  avert  or  mitigate 
further  harshness  toward  the  Israelites  residents  in, 
or  subjects  of,  the  Principalities."  The  remonstrance 
was  signed  by  the  representatives  of  Austria-Hungary, 
France,  Germany,  Great  Britain,  Greece,  Italy,  and  the 
United  States.  (Moore's  Digest,  vol.  VI,  p.  360;  For- 
eign Relations,  1872,  p.  691.) 

In  1902,  Secretary  Hay  called  the  attention  of  the 
powers  to  Roumania's  violation  of  the  Treaty  of  Ber- 
lin and  her  unjustifiable  oppression  of  the  Jews.  In 
this  instance,  the  American  Secretary  of  State  alluded, 
it  is  true,  to  the  interests  of  his  government  on  the 
ground  that  Roumania's  action  in  driving  to  our  shores 
a  horde  of  miserably  equipped  immigrants  placed  a 
burden  upon  this  country,  but  this  alleged  ground  of 
action  was  somewhat  far-fetched,  since  the  United 
States  could  easily  have  overcome  this  inconvenience 
by  passing  legislation  to  exclude  destitute  immigrants. 
As  the  correspondence  indicates,  Secretary  Hay's  in- 
tention was  to  demand  justice  for  the  oppressed  Jews 
in  conformity  with  the  principles  of  international  law 
and  the  dictates  of  humanity.  This  action  was  taken,  as 
he  said  in  his  dispatch  of  August  11,  1902,  to  Mr.  Me- 


70  INTERNATIONAL  POLICE 

Cormick,  "not  alone  because  it  [the  United  States]  has 
unimpeachable  ground  to  remonstrate  against  the  re- 
sulting injury  to  itself,  but  in  the  name  of  humanity" 
(Foreign  Relations  1902,  p.  45;  cf.  p.  42-5).  The  con- 
text shows  that  this  latter  was  the  real  ground  of  the 
protest  which  the  American  representative  was  in- 
structed to  present  to  Roumania.  A  peculiar  force  was 
given  to  this  action  through  its  communication  to  the 
principal  European  powers.  The  answer  from  the  Brit- 
ish Government,  dated  September  2, 1902,  contained  the 
following  promise  of  action:  "His  Majesty's  Govern- 
ment will  place  themselves  in  communication  with  the 
other  powers  signatory  of  the  treaty  of  Berlin,  with  a 
view  to  a  joint  representation  to  the  Roumanian  Gov- 
ernment on  the  subject. ' "a  (Foreign  Relations  1902,  p. 
550).  But  the  other  powers  seem  to  have  done  no  more 
than  to  acknowledge  receipt  of  the  communication  and 
to  give  it,  as  the  German  Minister  said, '  *  such  consider- 
ation as  its  importance  deserves."  (Foreign  Rela- 
tions, 1902,  p.  442;  cf.  pp.  420,  684,  910-15,  936, 1048.) 

In  Russia  also,  the  Jews  have  frequently  been  sub- 
jected to  outrages  from  the  populace.    Horrible  riots, 

10Sir  William  White's  Life  and  Correspondence,  edited  by 
H.  Sutherland  Edwards,  pp.  156-161,  168,  indicates  how  vig- 
orously Lord  Salisbury  championed  the  Jewish  cause  and  how 
he  would  not  let  Sir  William  present  his  credentials,  already 
prepared,  as  British  Minister,  until  Roumania  complied  with 
the  terms  of  Article  44  of  the  Treaty  of  Berlin  relative  to  the 
treatment  of  the  Jews.  This  account  justifies  the  Roumanian 
Government  and  condemns  the  intervention  of  Great  Britain, 
which  it  attributes,  without  supplying  any  documentary  evi- 
dence, to  a  desire  to  support  France  (pp.  18-19,  86-90).  From 
the  same  work,  we  quote  the  following  account  of  the  vigorous 
intervention  of  the  British  Government  in  favor  of  the  Ser- 
vian Jews:  "Not  content  with  working  through  its  own 
agents,  the  Foreign  Office  once  went  so  far  as  to  instruct  Lord 
Augustus  Loftus  at  Berlin  to  call  the  attention  of  Prince  Bis- 
marck to  the  disabilities  weighing  upon  the  Jews  in  Servia. " 
(Ibid,  p.  87.) 


PERSECUTION  71 

or  pogroms,  occurred  after  the  assassination  of  Alex- 
ander II,  due  to  the  belief  of  the  masses  that  the  Jews 
were  largely  responsible  for  the  crime.  (See  Foreign 
Relations,  1882,  p.  446-452).  By  their  government,  too, 
these  unfortunate  people  were  also  subjected  to  many 
vexatious  and  discriminatory  regulations  which  inter- 
fered with  their  freedom  of  travel  and  with  the  choice 
of  the  occupations  in  which  they  might  engage.  (See 
Andrew  D.  White 's  report,  Foreign  Relations,  1894,  p. 
525-35.) 

Deeply  stirred  by  these  barbarous  and  arbitrary 
acts,  the  United  States  intervened17  diplomatically  to 
the  extent  of  making  representations  against  the  treat- 
ment of  the  Jews,  and  attempted  to  use  its  diplomatic 
influence  in  favor  of  toleration  (Foreign  Eelations, 
1880,  p.  873;  1882,  p.  451),  but  this  action  was  at  first 
carefully  limited.  When  Secretary  of  State  Evarts 
was  requested  by  Hebrews  in  the  United  States  "to 
make  such  representations  to  the  Tsar's  Government, 
in  the  interest  of  religious  freedom  and  suffering  hu- 
manity, as  will  best  accord  with  the  most  emphasized 
liberal  sentiments  of  the  American  people, "  he  instruct- 
ed Mr.  Foster,  the  American  Minister: 

1  'You  are  sufficiently  well  informed  of  the  liberal 
sentiments  of  this  government  to  perceive  that  when- 
ever any  pertinent  occasion  may  arise  its  attitude  must 
always  be  in  complete  harmony  with  the  principle 
of  extending  all  the  rights  and  privileges,  without 
distinction  on  account  of  creed,  and  cannot  fail,  there- 
fore, to  conduct  any  affair  of  business  or  negotiation 
with  the  government  to  which  you  are  accredited,  which 
may  involve  any  expression  of  the  views  of  this  govern- 

"Whether  the  action  of  the  United  States  is  to  be  consid- 
ered an  intervention  or  merely  intercession  will  depend  upon 
the  definition  given  to  these  words.  (See  discussion  under  § 
11.) 


72  INTERNATIONAL  POLICE 

ment  on  the  subject,  in  a  manner  which  will  subserve 
the  interests  of  religious  freedom.  It  would,  of  course, 
be  inadmissible  for  the  government  of  the  United 
States  to  approach  the  Government  of  Russia  in  criti- 
cism of  its  laws  and  regulations,  except  so  far  as  such 
laws  and  regulations  may  injuriously  affect  citizens  of 
this  country,  in  violation  of  natural  rights,  treaty  obli- 
gations, or  the  provisions  of  international  law,  but  it  is 
desired  that  the  attitude  of  the  minister,  as  regards 
questions  of  diplomatic  controversy,  which  involve  an 
expression  of  view  on  this  subject,  may  be  wholly  con- 
sistent with  the  theory  on  which  this  government  was 
founded."  (Foreign  Relations,  1880,  p.  873.) 

But  the  United  States  approached  the  matter  more 
vigorously  from  another  direction,  that  is,  through  in- 
terposition to  secure  for  American  Jews  established  in 
Russia  or  Jews  of  Russian  origin  returning  thither 
after  naturalization  the  same  treatment  as  other 
Americans  would  receive.18  The  result  of  acquiescence 
in  this  demand  would  have  been  to  accord  foreign  Jews 
in  Russia  a  treatment  better  than  that  received  by  Rus- 
sian Jews,  and  would  have  made  it  very  difficult  to  per- 
sist in  the  severe  discriminations  against  the  Jews.  In 
the  form  of  a  reasonable  request  that  all  American 
citizens  be  treated  with  equal  regard,  it  was  really  an 

18Another  phase  of  this  same  question  arose  from  the  refusal 
of  Russian  consuls  in  the  United  States  to  vise  the  passports 
of  Jews  wishing  to  visit  Russia.  The  Government  of  the 
United  States  took  the  ground  that  this  refusal  of  a  vise  tak- 
ing place  upon  American  territory  was  a  violation  of  the 
principle  of  equality  which  must  prevail  under  American 
jurisdiction.  (See  Foreign  Relations,  1893,  p.  536,  passim; 
ibid,  1895,  Part  II,  p.  1065,  passim;  ibid,  1897,  p.  442-3.)  No 
doubt  the  United  States  was  in  a  position  to  enforce  compli- 
ance with  this  review,  but  the  practical  result  could  only  have 
been  to  subject  all  Americans  wishing  to  enter  Russia  to  vex- 
atious delays  at  the  frontier.  (See  Foreign  Relations,  1895, 
Part  II,  p.  1065.) 


PERSECUTION  73 

insistence  upon  a  favored  treatment  for  certain  class- 
es of  Americans  in  Russia.  The  serious  purpose  of  the 
American  Government  to  force  this  issue  was  shown 
by  a  strong  appeal  in  1881  to  the  British  Government 
for  cooperative  action  upon  the  ground  that  aliens  in 
Russia  were  "  brought  under  the  harsh  yoke  of  bigotry 
or  prejudice  which  bows  the  necks  of  the  natives, ' '  and 
that  "  enlightened  appeals  were  disregarded  and  were 
met  with  intimations  of  a  purpose  still  further  to  bur- 
den the  unhappy  sufferers,  and  so  to  necessarily  in- 
crease the  disability  of  foreigners  of  like  creed  resort- 
ing to  Russia."  Secretary  Elaine  considered  that  it 
became  "in  a  high  sense  a  moral  duty  to  our  own  citi- 
zens and  to  the  doctrines  of  religious  freedom  we  so 
strongly  uphold  to  seek  proper  protection  for  those 
citizens  and  tolerance  for  their  creed  in  foreign  lands, 
even  at  the  risk  of  criticism  of  the  municipal  laws  of 
other  states."  Accordingly  he  instructed  Mr.  Lowell, 
our  Minister  at  London,  to  * '  approach  the  British  Gov- 
ernment in  the  direction  of  urging  similar  or  concerted 
representations  with  the  United  States  in  behalf  of 
the  amelioration  of  the  condition  of  the  Jews  in  Rus- 
sia," and  the  American  Charge  at  St.  Petersburg  was 
similarly  instructed  freely  to  acquaint  the  British  Am- 
bassador with  what  was  being  done.  (Secretary  Blaine 
to  Mr.  Lowell,  Nov.  22, 1881;  to  Charge  Hoffman,  Nov. 
23,  1881,  manuscript  instructions  quoted  in  Moore's 
Digest,  Vol.  VI,  p.  352-3.) 

However  great  the  sympathy  of  the  British  Govern- 
ment may  have  been  with  the  purpose  of  the  action,  the 
delicacy  of  the  relations  of  the  European  powers  doubt- 
less made  such  cooperation  impossible,  and  the  British 
Government  declined  to  ask  an  equal  treatment  for  all 
British  subjects.  The  serious  objection  of  Russia  to 
any  move  in  the  nature  of  that  suggested  by  the  Ameri- 
can Government  was  shown  by  a  note  published  in  the 


74  INTERNATIONAL  POLICE 

Agence  Generate  Russe,  objecting  to  collective  action, 
Basing  its  action  on  still  another  ground,  the  Govern- 
ment of  the  United  States  complained  to  the  Russian 
Government  of  its  harsh  treatment  of  the  Jews,  which 
forced  them  to  emigrate  in  large  numbers  to  this  coun- 
try. In  his  instructions  to  the  American  Minister,  Feb- 
ruary 18,  1891,  Secretary  of  State  James  G.  Elaine 
spoke  of  the  action  taken  by  the  Russian  Government 
as  a  step  which  "would  not  only  wound  the  universal 
and  innate  sentiment  of  humanity,  but  would  suggest 
the  difficult  problem  of  affording  an  immediate  asylum 
to  a  million  or  more  of  exiles  without  seriously  derang- 
ing the  conditions  of  labor  and  of  social  organization  in 
other  communities. ' '  Mr.  Elaine  observes :  *  *  The  Gov- 
ernment of  the  United  States  does  not  assume  to  dic- 
tate the  internal  policy  of  other  nations,  or  to  make 
suggestions  as  to  what  their  municipal  laws  should  be 
or  as  to  the  manner  in  which  they  should  be  adminis- 
tered. Nevertheless,  the  mutual  duties  of  nations  re- 
quire that  each  should  use  its  power  with  a  due  regard 
for  the  results  which  its  exercise  produces  on  the  rest 
of  the  world."  (Foreign  Relations,  1891,  p.  737-9;  cf. 
Ibid,  1894,  p.  534.)  The  American  representative  was 
directed  to  read  this  instruction  to  the  Russian  Minis- 
ter of  Foreign  Affairs.  President  Harrison,  in  his  an- 
nual message,  December  9,  1891,  said:  "This  govern- 
ment has  found  occasion  to  express  in  a  friendly  spirit, 
but  with  much  earnestness,19  to  the  government  of  the 
Tsar,  its  serious  concern  because  of  the  harsh  measures 
now  being  enforced  against  the  Hebrews  in  Russia." 
Referring  to  the  effect  of  these  measures  to  drive  them 
to  America,  the  President  continued:  "The  banish- 

19The  use  of  the  word  "earnest"  has  usually  been  regarded 
as  conveying  a  warning  of  a  very  serious  intention  to  follow 
up  the  representations  in  as  far  as  the  exigencies  of  the  politi- 
cal situation  should  allow. 


PERSECUTION  75 

ment,  whether  by  direct  decree  or  by  not  less  certain 
indirect  methods,  of  so  large  a  number  of  men  and 
women  is  not  a  local  question.  A  decree  to  leave  one 
country  is,  in  the  nature  of  things,  an  order  to  enter 
another — some  other.  This  consideration,  as  well  as 
the  suggestions  of  humanity,  furnishes  ample  ground 
for  the  remonstrances  which  we  have  presented  to 
Russia,  while  our  historic  friendship  for  that  govern- 
ment cannot  fail  to  give  assurance  that  our  represen- 
tations are  those  of  a  sincere  wellwisher."  (Foreign 
Relations,  1891,  p.  XIII.) 

Notwithstanding  the  effort  to  make  it  appear  that 
the  United  States  was  justified  in  protesting  because 
of  the  injury  which  Russian  persecutions  caused  this 
country,  the  humanitarian  purpose  shows  through  the 
disguise  which  was  adopted,  either  for  the  purpose  of 
sparing  Russia's  feelings,  or  because  of  the  prevail- 
ing prejudice  against  any  intervention  in  the  inter- 
nal affairs  of  a  neighboring  state.  In  the  very  protest, 
it  was  stated  that  other  countries  have  closed  their 
doors  to  this  Jewish  immigration  (President  Harri- 
son's Message,  Dec.  9,  1891,  Foreign  Relations,  1891, 
p.  XII,  cf.  745),  and  the  United  States  could  have 
adopted  a  similar  policy  had  this  apprehension  really 
been  the  principal  motive  of  the  protests. 

That  the  real  motive  was  humanitarian  intervention 
is  indicated  in  Secretary  of  State  Frelinghuysen 's  in- 
struction of  April  15,  1882,  to  Mr.  Hoffman : 

"The  prejudice  of  race  and  creed  having  in  our  day 
given  way  to  the  claims  of  our  common  humanity,  the 
people  of  the  United  States  have  heard,  with  great  re- 
gret, the  stories  of  the  sufferings  of  the  Jews  in  Russia. 
It  may  be  that  the  accounts  in  the  newspapers  are  ex- 
aggerated, and  the  same  may  be  true  of  some  private 
reports.  Making,  however,  due  allowance  for  misrep- 
resentations, it  can  scarcely  be  doubted  that  much  has 


76  INTERNATIONAL  POLICE 

been  done  which  a  humane  and  just  person  must  con- 
demn. 

'  *  The  President,  of  course,  feels  that  the  government 
of  the  Emperor  should  not  be  held  morally  responsible 
for  acts  which  it  considers  wrong,  but  which  it  may 
be  powerless  to  prevent. 

"If  that  be  true  of  this  case,  it  would  be  worse  than 
useless  for  me  to  direct  you,  as  the  representative  of 
the  United  States,  to  give  official  expression  to  the  feel- 
ing which  this  treatment  of  the  Jews  calls  forth  in  this 
country.  Should,  however,  the  attitude  of  the  Russian 
Government  be  different,  and  should  you  be  of  the  opin- 
ion that  a  more  vigorous  effort  might  be  put  forth  for 
the  prevention  of  this  great  wrong,  you  will,  if  a  favor- 
able opportunity  offers,  state,  with  all  proper  defer- 
ence, that  the  feeling  of  friendship  which  the  United 
States  entertains  for  Russia  prompts  this  government 
to  express  the  hope  that  the  Imperial  Government  will 
find  means  to  cause  the  persecution  of  these  unfortu- 
nate fellow-beings  to  cease. 

1 1  This  instruction  devolves  a  delicate  duty  upon  you, 
and  a  wide  discretion  is  given  you  in  its  execution. 
However  much  this  Republic  may  disapprove  of  affairs 
in  other  nationalities,  it  does  not  conceive  that  it  is  its 
right  or  province  officiously  and  offensively  to  inter- 
meddle. If,  however,  it  should  come  to  your  knowledge 
that  any  citizens  of  the  United  States  are  made  victims 
of  the  persecution,  you  will  feel  it  your  duty  to  omit 
no  effort  to  protect  them  and  to  report  such  cases  to 
this  Department."  (Foreign  Relations,  1882,  p.  451.) 
After  the  great  exodus  of  Jews  from  Russia  to  the 
United  States,  it  was  natural  that  the  sympathy  for  the 
hard  lot  of  the  Russian  Jews  should  have  been  deep- 
ened, and  the  urgent  earnestness  of  the  protests  in- 
creased. The  most  notable  instance  was  President 
Roosevelt's  unofficial  action  relative  to  the  Kishenef 


PERSECUTION  77 

Massacres  (1903).20  From  Thayer's  Life  of  Roosevelt, 
we  take  the  following  account:  " Russian  mobs  ran 
amuck  and  massacred  many  Jews  in  the  city  of  Kishen- 
ef .  The  news  of  this  atrocity  reached  the  outside  world 
slowly:  when  it  came,  the  Jews  of  Western  Europe, 
and  especially  those  of  the  United  States,  cried  out  in 
horror,  held  meetings,  drew  up  protests,  and  framed 
petitions  asking  the  Tsar  to  punish  the  criminals. 
Leading  American  Jews  besought  Roosevelt  to  plead 
their  cause  before  the  Tsar.  As  it  was  well  known  that 
the  Tsar  would  refuse  to  receive  such  petitions,  and 
would  regard  himself  as  insulted  by  whatever  nation 
should  lay  them  before  him  by  official  diplomatic 
means,  the  world  wondered  what  Roosevelt  would  do. 
He  took  one  of  his  short  cuts,  and  chose  a  way  which 
everybody  saw  was  most  obvious  and  most  simple,  as 
soon  as  he  had  chosen  it.  He  sent  the  petitions  to  our 
Ambassador  at  Petrograd,  accompaning  them  with  a 
letter  which  recited  the  atrocities  and  grievances.  In 

20Francis  Rey  gives  an  outline  of  the  events,  based  upon 
French  sources,  and  rather  minimizing  the  seriousness  of  the 
action.  See  Revue  generale  de  droit  international,  vol.  XI, 
(1904),  p.  88-94;  cf.  also  Rougier,  ibid,  vol.  17,  1910,  p.  476-7 ; 
also  Foreign  Relations,  1903,  p.  712-715. 

Hershey  (International  Law,  p.  153,  note  17)  remarks: 
"The  protests  of  Secretary  Hay  and  President  Roosevelt 
against  the  treatment  of  the  Jews  in  Roumania  and  Russia  in 
1902  and  1903  were  not  interventions  in  the  proper  sense  of 
this  term.  One  is  surprised  to  see  Merignhac  (Traite  II:  p. 
299  and  n.)  so  characterize  them."  Roosevelt's  action  in  1903, 
it  is  true,  was  intercessory,  but  the  intention  was  to  influence 
Russia  and  Roumania  by  bringing  to  bear  against  them  the 
public  opinion  of  the  world,  and  perhaps  also,  if  the  occasion 
should  serve,  the  collective  action  of  other  powers.  The  danger 
which  might  result  from  the  irritation  which  would  be  aroused 
was  accepted  by  the  United  States,  and  in  the  case  of  Russia, 
stronger  measures  than  words  were  eventually  adopted,  for 
the  treaty  of  1832  was  later  abrogated.  Action  such  as  this 
exceeds  intercession,  and  is  a  diplomatic  protest  of  a  very 
pronounced  character. 


78  INTERNATIONAL  POLICE 

this  letter,  which  was  handed  to  the  Russian  Secretary 
of  State,  our  government  asked  whether  His  Majesty 
the  Tsar  would  condescend  to  receive  the  petitions. 
Of  course,  the  reply  was,  no,  but  the  letter  was  pub- 
lished in  all  countries,  so  that  the  Tsar  also  knew  of  the 
petitions,  and  of  the  horrors  which  called  them  out.  In 
this  fashion,  the  former  ranchman  and  Eough  Rider 
outwitted,  by  what  I  may  call  his  straightforward  guile, 
the  crafty  diplomats  of  the  Romanoffs.'*  (William 
Roscoe  Thayer:  Theodore  Roosevelt,  (1919),  p.  229- 
230.) 

Finally,  public  opinion  in  America  became  thorough- 
ly aroused,  and  on  December  17,  1911,  the  American 
Ambassador  officially  notified  the  Russian  Government 
of  the  termination  of  the  treaty  of  1832.  In  a  previous 
interview  with  Mr.  Sazanoff,  the  American  Ambassa- 
dor explained  the  American  viewpoint  in  regard  to  the 
contemplated  abrogation  of  the  treaty,  and  said  that 
the  action  of  the  House  of  Representatives  "was  un- 
questionably influenced  by  a  sincere  conviction  that 
such  action  might  have  far-reaching  results  in  inducing 
Russia  to  abandon  not  only  restriction  of  foreign  Jews, 
but  restriction  of  her  own  Jews,  ..."  (Foreign  Re- 
lations, 1911,  p.  695-9.) 

When  the  Russian  Minister  received  the  notice  of  the 
termination  of  the  treaty,  he  expressed  "emphatically 
his  surprise  at  the  action  of  the  Government  of  the 
United  States,  which  he  regarded  as  most  unfriendly" 
(ibid,  p.  698),  and  he  refused  to  permit  the  Ambassador 
"even  to  explain  in  full"  (ibid,  p.  699)  Secretary 
Knox's  suggestion  in  regard  to  the  public  announce- 
ment to  be  made  of  the  action  taken ;  and  thus  did  the 
Government  of  the  United  States,  in  the  presence  of 


PERSECUTION  79 

all  the  world,  mark  its  disapproval  of  Russia's  inhu- 
mane treatment  of  an  unprotected  people.21 

An  interesting  case  of  humanitarian  intervention  to 
protect  the  Jews  of  Frankfort  from  the  abusive  ex- 
actions of  the  Prussians  in  1866  is  referred  to  in  the 
Memoirs  of  Sir  Robert  Morier,  from  which  we  quote 
the  following :  '  *  Morier  took  up  his  new  post  at  Frank- 
fort the  day  before  the  Diet  left  that  Imperial  City 
never  to  return.  Though  there  for  a  short  time  only, 
it  proved  long  enough  for  him  to  be  able  to  join  in  tak- 
ing steps  to  stop  the  Prussians  levying  blackmail  on  the 
Jews  of  that  city,  Frankfort  having  been  treated  with 
an  untold  degree  of  harshness,  with  a  view  of  terrifying 
the  other  free  cities  of  Germany  into  acquiescence  in 
the  conditions  of  the  new  [North  German]  Constitu- 
tion. These  measures  were  unimportant  enough  in 

21Mr.  Arthur  K.  Kuhn,  in  a  pamphlet  entitled  ' '  Internation- 
al Law  and  the  Discriminations  Practiced  by  Russia  under  the 
Treaty  of  1832,"  has  pointed  out  that  after  Russia,  in  1862, 
had  adopted  the  practice  of  discrimination  against  subjects 
of  the  Jewish  faith,  Lord  Granville  first  took  a  vigorous  stand, 
declaring  that:  "The  treaty  between  this  country  (Great 
Britain)  and  Russia  of  the  12th  January,  1859,  applies  to  all 
Her  Majesty's  subjects  alike,  without  distinction  of  creed." 
(British  State  Papers,  Vol.  73,  p.  833.) 

Mr.  Kuhn  remarks :  ' '  For  some  reason  which  does  not  clear- 
ly appear,  Lord  Granville  afterwards  surrendered  his  position 
in  the  matter  and  followed  the  precedent  of  1862  and  insisted 
only  that  British  subjects  should  be  placed  on  the  same  footing 
as  Russian  subjects  of  the  same  'class.'  He  did  not  admit  the 
correctness  of  the  principle  as  a  guide  for  the  interpretation 
of  the  treaty ;  he  simply  did  not  desire  to  overrule  his  prede- 
cessor. Indeed,  he  clearly  enunciated  the  choice  of  principle 
which  was  involved,  for  he  says :  '  The  treaty  is  no  doubt  open 
to  two  possible  constructions :  the  one,  that  it  only  assures  to 
British  subjects  of  any  particular  creed  the  same  privileges  as 
are  enjoyed  by  Russian  subjects  of  the  same  creed ;  the  other, 
that  the  privileges  are  accorded  to  all  alike  without  regard 
to  the  religious  body  to  which  they  belong.'  (British  State 
Papers,  Vol.  73,  p.  845.)  It  has  since  become  apparent  that 
diplomatic  considerations  induced  Great  Britain  to  refrain 


80  INTERNATIONAL  POLICE 

themselves,  but  sufficiently  delicate  to  earn  for  him  the 
public,  as  well  as  private  approval  of  Lord  Stanley, 
who  had  become  Foreign  Secretary  on  the  fall  of  the 
Russell  Cabinet  in  July."  (Memoirs  of  Sir  Robert 
Morier,  Vol.  II,  p.  84.) 

Turkey's  persecutions  of  the  Armenians  have  added 
another  instance  in  which  the  United  States  has  felt 
constrained  by  the  obligations  of  a  common  humanity 
to  intervene  diplomatically.  This  action  is  of  especial 
interest  since  it  took  place  at  a  critical  moment  of  the 
war,  when  American  intervention  might  well  have  had 

from  insisting  on  the  construction  of  the  treaty  which  she  her- 
self deemed  correct. 

"In  striking  contrast  to  the  weak  position  finally  taken  by 
the  British  Government  upon  this  question,  prompted  prob- 
ably by  considerations  of  policy  and  expediency,  rather  than 
of  international  legal  justice,  was  the  attitude  taken  at  the 
same  time  by  the  United  States  with  reference  to  the  same  con- 
tention. ' ' 

The  Department  of  State  took  a  similar  stand  in  regard  to 
the  protection  of  Jews  in  Switzerland.  To  quote  from  the 
same  source:  "Prior  to  the  Constitution  of  Switzerland  of 
1874,  under  which  religious  equality  is  now  guaranteed  as 
effectually  as  in  the  United  States,  subjects  of  Jewish  faith 
were  prohibited  from  establishing  themselves  in  certain  Can- 
tons and  were  under  heavy  disabilities  in  others.  Represen- 
tations were  made  to  Switzerland  by  several  European  coun- 
tries, as  well  as  by  the  United  States,  in  reply  to  which  these 
Cantons  maintained  the  right  to  impose  the  same  disabilities 
on  subjects  of  foreign  nations  with  which  Switzerland  had  con- 
cluded treaties  of  friendship,  commerce  and  intercourse,  as 
were  imposed  on  natives  of  the  same  class  in  Switzerland.  In 
opposition  to  this  contention,  Mr.  Seward,  our  Secretary  of 
State,  entered  into  voluminous  correspondence  with  Mr.  Fay, 
the  American  representative  in  Switzerland,  instructing  him 
to  insist  upon  the  rights  of  American  Jews,  notwithstanding 
the  disabilities  under  which  the  particular  Cantons  had  placed 
Jews  of  Swiss  origin." 

Further  along,  Mr.  Kuhn  remarks:  "France,  at  that  time, 
was  particularly  energetic  in  demanding  full  treaty  rights  to 
its  citizens  of  Jewish  faith.  In  1851,  Louis  Napoleon,  through 
the  French  Minister  at  Berne,  sent  a  note  in  which  he  stated 


PERSECUTION  81 

the  most  serious  consequences  for  the  Turkish  Govern- 
ment and  those  responsible  for  the  frightful  horrors 
perpetrated  upon  the  defenseless  Armenians.  The  New 
York  Evening  Post,  October  5,  1915,  prints  the  follow- 
ing report  from  Washington:  "The  Turkish  Govern- 
ment will  be  formally  notified  that  unless  the  massacre 
oi  Armenians  ceases,  friendly  relations  between  the 
American  people  and  the  people  of  Turkey  will  be 
threatened.  Instructions  to  that  effect  had  gone  today 
to  Ambassador  Morgenthau  at  Constantinople  for 
presentation  to  the  Foreign  Office.  Officials  here  made 

that  France  would  expel  all  Swiss  citizens  established  in 
France  in  case  the  two  Cantons  (Basle  City  and  County) 
would  insist  on  carrying  out  their  law  prohibiting  the  estab- 
lishment of  French  citizens  of  the  Jewish  faith  on  their  terri- 
tory. (Allgemeine  Zeitung  des  Judenthums,  December  15, 
1851;  January  1,  1852;  S.  M.  Strook,  op.  cit.,  pp.  12-13.) 
The  matter  was  finally  referred  to  a  commission  of  the  Senate 
of  the  Second  Empire  and  in  1864  a  report  was  made  through 
the  chairman  of  the  commission,  Ferdinand  de  Lesseps,  in  the 
following  terms: 

'No  distinction  may  be  recognized  in  the  enjoyment  of 
civil  and  political  rights  between  a  French  Jew  and  a 
French  Catholic  or  Protestant.  This  equality  of  rights 
must  also  follow  a  citizen  beyond  the  frontier;  and  the 
principles  of  our  Constitution  do  not  authorize  the  Gov- 
ernment to  protect  its  subjects  in  a  different  manner  ac- 
cording to  which  faith  he  professes. '  ( See  Debats  Parle- 
mentaries,  1909,  p.  3779.) 

''As  a  result  of  this  movement,  the  French  Government 
finally  repudiated  the  prior  treaties  which  were  unsatisfactory 
in  failing  to  guarantee  equal  treatment  to  all  French  citizens, 
and  a  new  treaty  was  obtained  from  Switzerland  in  which  such 
a  guarantee  was  expressly  made  by  recognizing  'the  right  of 
French  subjects,  without  distinction  of  faith  or  worship,  to 
travel,  sojourn,  and  transact  all  lawful  business,  as  freely  as 
Swiss  Christian  residents  of  other  Cantons  may  do. '  ( Foreign 
Relations,  1864,  p.  401.) 

"The  victory  which  French  diplomacy  had  won  over  the 
illiberalism  of  the  Swiss  Cantons  solved  the  problem  of  the 
United  States  Government  as  well." 
6 


82  INTERNATIONAL  POLICE 

it  plain,  however,  that  the  message  did  not  threaten  a 
rapture  in  the  diplomatic  relations  between  the  two 
countries. 

"The  Ambassador's  instructions  are  merely  to  in- 
form Turkey  that  the  American  people  already  are  so 
stirred  by  the  reported  massacres  that  a  continuance  of 
the  atrocities  might  result  in  a  break  in  the  friendly  re- 
lations between  the  two  peoples. 

"It  was  explained  at  the  State  Department  that  the 
instructions  to  Ambassador  Morgenthau  direct  him  to 
offer  his  good  offices  in  behalf  of  the  Armenians,  and  to 
state  to  the  Turkish  Government  that  reports  of  atroci- 
ties upon  Armenians  are  causing  unfriendly  criticism 
among  the  people  of  the  United  States." 

The  Council  of  the  League  of  Nations  has  recently 
invited  the  United  States  to  accept  a  mandate  for  the 
supervision  of  Armenia.22 

22The  report  of  the  American  Military  Mission  to  Armenia, 
dated  October  16,  1919  (printed  in  International  Conciliation 
Pamphlet  No.  151),  gives  an  account  of  the  treatment  of  the 
Armenians,  from  which  the  following  extracts  are  taken : 

"The  Russo-Turkish  War  ended  in  1877  by  the  treaty  of 
San  Stefano,  under  which  Russia  was  to  occupy  certain 
regions  until  actual  reforms  had  taken  place  in  Turkey.  This 
treaty,  through  British  jealousy  of  Russia,  was  torn  up  the  fol- 
lowing year  and  the  futile  treaty  of  Berlin  substituted,  asking 
protection  but  without  guaranties.  Meantime  there  had  been 
the  convention  of  Cyprus,  by  which  that  island  passed  to  Great 
Britain,  and  the  protection  of  Turkey  was  promised  for  the 
Armenians  in  return  for  Great  Britain 's  agreement  to  come  to 
the  aid  of  Turkey  against  Russia.  A  collective  note  of 
the  powers  in  1880  was  ignored  by  Turkey.  Then  followed  the 
agreement  of  1895,  which  was  never  carried  out,  and  the 
restoration  of  the  constitution  of  1876  in  1908.  A  further 
agreement  in  1914  was  abrogated  at  the  entrance  of  Turkey 
in  the  war — and  the  last  of  the  series  is  a  secret  treaty  of  1916 
between  Great  Britain,  France,  and  Russia,  the  existence  and 
publication  of  which  rest  on  Bolshevik  authority,  by  which 
Armenia  was  to  be  divided  between  Russia  and  France.  Mean- 
while there  have  been  organized  official  massacres  of  the  Ar- 


PERSECUTION  83 

We  might  also  class  as  instances  of  religious  perse- 
cution the  severities  to  which  the  Greeks  were  subjec^- 
ed  before  the  intervention  of  the  powers  brought  them 
freedom  (1827),  and  the  Bulgarian  atrocities  (1876), 
which  were  the  immediate  cause  and  a  sufficient  justifi- 
cation of  Russia's  intervention.  But  other  motives 
than  religious  persecution  seem  more  justly  entitled  to 
claim  the  honor  of  having  actuated  these  interventions. 

We  cannot  pass  over  without  remark  the  religious 
persecutions  of  the  Reformation,  and  the  many  inter- 
ventions to  which  religious  sympathies  gave  rise,  but  it 
is  difficult  to  consider  them  as  true  instances  of  humani- 
tarian intervention  to  prevent  unusual  persecution,  for 
such  persecutions  seem  at  that  period  to  have  been  the 
rule  rather  than  the  exception.  We  ought  therefore  to 
compare  them  with  those  modern  interventions  of  the 
Holy  Alliance  to  support  Legitimacy,  and  the  interven- 

menians  ordered  every  few  years  since  Abdul  Hamid  ascended 
the  throne.  In  1895,  100,000  perished.  At  Van  in  1908,  and 
at  Adana  and  elsewhere  in  Cilicia  in  1909,  over  30,000  were 
murdered.  The  last  and  greatest  of  these  tragedies  was  in 
1915.  Conservative  estimates  place  the  number  of  Armenians 
in  Asiatic  Turkey  in  1914  over  1,500,000,  though  some  make 
it  higher.  Massacres  and  deportations  were  organized  in  the 
spring  of  1915  under  definite  system,  the  soldiers  going  from 
town  to  town.  The  official  reports  of  the  Turkish  Government 
show  1,100,000  as  having  been  deported.  Young  men  were 
first  summoned  to  the  government  building  in  each  village  and 
then  marched  out  and  killed.  The  women,  the  old  men  and 
children  were,  after  a  few  days,  deported  to  what  Talaat  Pasha 
called  "agricultural  colonies,"  from  the  high,  cool,  breeze- 
swept  plateau  of  Armenia  to  the  malarial  flats  of  the  Eu- 
phrates and  the  burning  sands  of  Syria  and  Arabia.  The  dead 
from  this  wholesale  attempt  on  the  race  are  variously  estimated 
from  500,000  to  more  than  a  million,  the  usual  figure  being 
about  800,000. 

' '  Driven  on  foot  under  a  fierce  summer  sun,  robbed  of  their 
clothing  and  such  petty  articles  as  they  carried,  prodded  by 
bayonet  if  they  lagged,  starvation,  typhus  and  dysentery  left 
thousands  dead  by  the  trail  side.  The  ration  was  a  pound  of 
bread  every  alternate  day,  which  many  did  not  receive,  and 


84  INTERNATIONAL  POLICE 

tions  of  the  Wilson  administration  to  support  constitu- 
tional Government,  which  is  equivalent  to  saying  that 
they  are  not  interventions  at  all,  but  interferences  of  a 
political  complexion  for  the  extension  of  certain  opin- 
ions, to  be  justified,  if  at  all,  by  the  circumstances  in 
each  case  and  the  results  achieved. 

Sir  Frederick  St.  John,  in  his  Reminiscences  of  a 
Retired  Diplomat  (p.  16-17),  gives  the  following  ac- 
count of  the  action  which  the  British  Mission  in  Tus- 
cany about  1855  took  to  prevent  the  religious  persecu- 
tion of  the  Protestants.  It  serves  also  to  illustrate  the 
care  that  was  taken  to  give  an  aspect  of  friendly  inter- 
cession to  what  was  substantially  intervention: 

' '  My  office  of  private  secretary  relieved  me  from  the 
routine  duties  in  the  chancery,  and  my  occupations  were 
chiefly  of  a  social  character,  such  as  those  above  de- 
scribed; but  I  was  occasionally  employed  in  more  seri- 
ous matters,  such  as  contributing  to  the  relief  of  vic- 
tims of  the  religious  persecution  which  was  then  [about 
1855]  so  rampant  in  Tuscany.  The  method  employed 
was  the  following:  Instances  of  imprisonment  of  per- 
sons discovered  to  have  attended  Bible  meetings,  at 
that  time  held  in  all  parts  of  the  grand  duchy,  were  ver- 

later  a  small  daily  sprinkling  of  meal  on  the  palm  of  the  out- 
stretched hand  was  the  only  food.  Many  perished  from  thirst 
or  were  killed  as  they  attempted  to  slake  thirst  at  the  crossing 
of  running  streams.  Numbers  were  murdered  by  savage 
Kurds,  against  whom  the  Turkish  soldiery  afforded  no  pro- 
tection. Little  girls  of  nine  or  ten  were  sold  to  Kurdish 
brigands  for  a  few  piasters,  and  women  were  promiscuously 
violated.  At  Sivas  an  instance  was  related  of  a  teacher  at  the 
Sivas  Teachers '  College,  a  gentle,  refined  Armenian  girl,  speak- 
ing English,  knowing  music,  attractive  by  the  standards  of 
any  land,  who  was  given  in  enforced  marriage  to  the  beg  of  a 
neighboring  Kurdish  village,  a  filthy  ragged  ruflfian  three  times 
her  age,  with  whom  she  still  has  to  live,  and  by  whom  she  has 
borne  a  child.  In  the  orphanage  there  maintained  under 
American  relief  auspices  there  were  150  "brides,"  being  girls, 
many  of  them  of  tender  age,  who  had  been  living  as  wives  in 


PERSECUTION  85 

bally  reported  to  me  by  the  members  of  the  central  com- 
mittee of  proselytes,  with  every  detail  as  to  name,  date 
and  locality ;  this  was  for  the  information  of  my  chief, 
who  thereupon  would  call  on  the  Tuscan  minister  whom 
it  concerned,  and  adjure  him  for  the  sake  of  Tuscany 's 
good  name  to  order  the  liberation  of  the  prisoners,  be- 
fore the  foreign  press  could  get  wind  of  the  occurrence 
and  publish  it  to  the  world.  I  cannot  now  recall  a 
single  case  of  failure ;  and  I  attribute  the  great  success 
of  Lord  Normanby  in  this  matter  to  his  unequalled 
prestige  in  the  country  of  his  adoption  as  a  residence, 
as  well  as  to  his  great  intimacy  with  the  Grand  Duke — 
who,  with  all  his  bigotry,  was  known  for  his  kind 
heart  and  dread  of  giving  any  cause  for  scandal.  I 
must  mention  that  such  was  the  fear  of  detection,  that, 
although  I  received  weekly  visits  from  members  of  the 
proselyte  and  proselytising  brotherhood  during  my 
three  years  of  service  as  a  medium  of  communication, 
I  was  never  visited  twice  by  the  same  individual ;  while 
several  times  I  was  approached  by  persons  whom  I  had 
known  by  sight,  but  had  never  suspected  of  Protestant 
proclivities. ' '  ( Sir  Frederick  St.  John :  Reminiscences 
of  a  Retired  Diplomat,  London,  1905,  p.  16-17.) 

Moslem  homes  and  had  been  rescued.  Of  the  female  refugees 
among  some  75,000  repatriated  from  Syria  and  Mesopotamia 
we  were  informed  at  Aleppo  that  forty  per  cent,  are  infected 
with  venereal  disease  from  the  lives  to  which  they  have  been 
forced.  The  women  of  this  race  were  free  from  such  diseases 
before  the  deportation.  Mutilation,  violation,  torture  and 
death  have  left  their  haunting  memories  in  a  hundred  beauti- 
ful Armenian  valleys,  and  the  traveler  in  that  region  is  seldom 
free  from  the  evidence  of  this  most  colossal  crime  of  all  the 
ages.  Yet  immunity  from  it  all  might  have  been  purchased 
for  any  Armenian  girl  or  comely  woman  by  abjuring  her  re- 
ligion and  turning  Moslem.  Surely  no  faith  has  ever  been 
put  to  harder  test  or  has  been  cherished  at  greater  cost."  (In- 
ternational Conciliation  Pamphlets,  No.  151,  p.  280-1.) 

' '  Testimony  is  universal  that  the  massacres  have  always  been 
ordered  from  Constantinople."     (Ibid,  p.  285.) 


86  INTERNATIONAL  POLICE 

§  8  ( b ) .    OPPRESSION 

The  cruel  and  unnecessary  suppression  of  the  na- 
tional institutions  and  aspirations  of  a  subject  people 
is  an  abuse  of  power  which  shocks  the  civilized  world 
in  every  fibre.  The  indignation  of  public  opinion  spurs 
on  to  action  governments  even  which  are  sluggish  and 
without  ambitions.  This  reluctance  is  sometimes  due 
to  the  fear  that  intervention  in  defense  of  the  rights 
of  nationality  or  self-determination  may  be  turned 
against  them  to  encourage  portions  of  their  own  em- 
pires to  seek  an  inconveniently  great  degree  of  inde- 
pendence of  status.  It  is  natural,  therefore,  that  gov- 
ernments should  prefer  to  urge  other  grounds  to  justi- 
fy the  humanitarian  intervention  which  they  have  un- 
dertaken.23 

Formerly,  religious  sentiment  was  closely  connected 
with  the  racial  characteristics  and  the  nationalistic 
aspirations  of  a  people.  In  consequence,  political  op- 
pression and  attempts  to  assimilate  or  suppress  alien 
races  generally  took  the  form  of  religious  persecution.24 

"Napoleon  III  made  intervention  in  favor  of  nationality, 
that  is  for  self-determination,  a  guiding  principle  of  his  foreign 
policy,  and  to  it  he  owed  much  of  the  success  of  his  earlier 
years.  His  most  serious  errors  were  his  departures  from  this 
policy,  as  his  interference  in  Mexico  and  his  attempt  to  pre- 
vent German  unity.  The  Italians  have  pushed  this  theory  to 
the  utmost  extreme. 

"During  the  French  wars  of  religion,  the  Catholic  publicists 
argued  that  the  Protestants  were  not  really  French  (Esmein, 
La  theorie  de  1'intervention  Internationale  chez  quelques  pub- 
licistes  francais  du  XVIe  siecle,  in  Nouvelle  revue  historique 
de  droit  francais  et  etranger,  1900,  vol.  24:  549-574.)  Even 
today  nationality  in  countries  under  Turkish  rule  is  confound- 
ed in  the  popular  mind  with  acceptance  of  Mohammed.  Be- 
fore the  war,  the  Russian  peasant  had  something  of  this  atti- 
tude towards  all  who  were  not  of  the  orthodox  religion,  and 
we  often  find  a  survival  of  this  prejudice  in  certain  persons 
who  consider  the  racial  origin  or  religion  of  a  Jew  as  deter- 
mining his  status,  rather  than  the  nationality  to  which  he 
belongs. 


OPPRESSION  87 

In  truth,  persistent  religious  persecution  has  survived 
only  in  those  countries  like  Turkey  or  Russia  that  re- 
gard those  who  profess  another  faith  in  the  light  of 
aliens.  In  the  nineteenth  century,  the  great  growth  of 
national  states  and  the  keen  rivalries  of  great  powers 
led  certain  of  the  less  developed  and  more  reactionary 
powers  like  Russia  and  Prussia  to  attempt  the  com- 
plete absorption  of  the  peoples  or  nations  under  their 
jurisdiction.  A  similar  desire  to  preserve  her  influ- 
ence led  Austria  to  block  the  efforts  of  the  people  of 
the  small  Italian  states  to  achieve  their  national  unity. 
These  various  attempts  at  the  suppression  of  the  na- 
tionalistic aspirations  of  a  subject  people  have  shocked 
the  moral  sense  of  Europe.  If  on  the  one  hand  inter- 
national law  cannot  be  said  to  have  recognized  the  right 
of  a  people  who  possess  distinct  national  characteris- 
tics to  be  independent,  or  even  to  be  granted  an  autono- 
mous regime,  on  the  other  hand  it  may  be  said  that  in- 
ternational law  does  not  allow  these  aspirations  to  be 
suppressed  with  unrestricted  severity. 

Whatever  justification  can  be  found  for  the  interfer- 
ence of  the  American  Government  in  the  Irish  troubles 
of  1848  must  rest  upon  the  right  of  self-determination. 
Under  date  of  September  4,  1848,  Mr.  Isaac  Toucey, 
Secretary  of  State  ad  interim,  sent  Minister  Bancroft 
the  following  instructions :  '  *  It  is  the  wish  of  the  Presi- 
dent and,  he  instructs  you  to  urge  upon  the  British  Gov- 
ernment the  adoption  of  a  magnanimous  and  merciful 
course  towards  those  men  who  have  been  implicated  in 
the  late  disturbances  in  Ireland."  (Executive  Docu- 
ment No.  19,  30  Congress,  Bancroft  Collection,  New 
York  Public  Library,  Vol.  33,  p.  242.) 

In  America  also  an  active  propaganda — meetings, 
collection  of  funds,  and  fitting  out  of  the  agitators — 
was  carried  on  without  any  repression  from  the  gov- 
ernmental authorities,  to  the  great  irritation  of  the 


88  INTERNATIONAL  POLICE 

British  Government,  which  proceeded  to  employ  meas- 
ures of  reprisal  against  Americans  traveling  in  Ire- 
land. Several  Americans  were  imprisoned  and 
searched  under  secret  orders  which  were  not  disclosed. 
This  action  was  taken  apparently  by  way  of  retaliation 
against  Americans.  (Cf.  Bancroft  Collection  of  Docu- 
ments on  Foreign  Relations,  New  York  Public  Library, 
vol.  33;  cf.  also  Parliamentary  Papers,  1852,  vol.  54, 
Buol  to  Palmerston, — refers  to  this  discrimination 
against  the  United  States.) 

The  motive  of  the  interference  of  France  and  Great 
Britain  in  the  affairs  of  Naples,  1857,  was  the  protec- 
tion of  the  political  agitators  who  were  striving  for 
Italian  national  unity  and  freedom  from  Austrian 
tutelage.24* 

24*  But  since  it  was  the  agitators  who  were  trying  to  effect 
a  revolution,  and  since  the  Neapolitan  Government  was  merely 
attempting  to  hold  its  own,  there  was  no  active  suppression 
of  national  institutions.  Cruel  treatment,  when  confined  to 
political  prisoners,  may  possibly  be  considered  some  day  as  a 
ground  for  humanitarian  intervention,  but  as  yet  it  has  not 
been  so  recognized. 

In  this  connection  it  is  interesting  to  note  what  Lord  Pal- 
merston had  written  his  brother  a  few  months  previously: 
"You  may  assure  the  King  of  Naples,  if  you  see  him,  that  I  am 
anxious  to  renew  with  Naples  that  friendly  footing  of  mutual 
relations  which  existed  in  the  time  of  some  of  his  ancestors, 
but  that  such  a  state  of  things  is  impossible  unless  he  changes 
his  system  of  policy,  foreign  and  domestic. 

"We  do  not  presume  to  dictate  to  him  on  either  of  these 
branches,  but  we  are  entitled  to  say  on  what  conditions  our 
good-will  is  to  be  obtained,  and  the  course  of  events  seems  to 
show  that  the  good-will  of  England  is  a  matter  of  some  import- 
ance even  to  states  as  far  removed  from  our  shores  as  Naples 
is."  (Ashley :  Palmerston,  II,  p.  78 ;  cf.  the  remarks  of  Count 
Walewski,  Congress  of  Paris,  Protocol  of  April  8,  1856. 

John  Stuart  Mill  was  evidently  justified  in  his  belief  "that 
Palmerston  really  hoped  by  holding  the  King  of  Naples  up 
to  shame  before  all  Europe  to  force  him  to  change  his  conduct 
somewhat.  But  he  didn't  know  his  man";  comments  the 
philosopher.  (Free  translation  from  Mill's  Letters,  Vol.  I,  p. 
195.) 


OPPRESSION  89 

In  1863,  Great  Britain,  France,  and  Austria  made 
concurrent  representations  or  protests  to  Russia  in 
regard  to  her  oppressive  treatment  of  her  Polish  sub- 
jects. 

The  intricate  nature  of  the  prolonged  negotiations 
complicated  by  the  divergencies  of  view  between  the 
separate  powers  cannot  unfortunately  be  fully  con- 
sidered within  the  limits  of  the  space  at  our  disposal 
and  we  must  refer  the  reader  to  the  sources  we  have 
examined  for  the  verification  and  amplification  of  our 
statements.25 

Alexander  I  of  Russia  at  the  Congress  of  Vienna 
planned  to  reconstitute  the  Kingdom  of  Poland  under 
his  own  suzerainty,  but  England  objected  because  she 
feared  the  preponderance  of  Russia  on  the  Continent.26 


25This  brief  account  of  the  deplorable  events  of  the  humani- 
tarian intervention  of  the  powers  in  favor  of  the  Poles  was 
prepared  from  the  following  works  and  documents:  French 
Yellow  Book,  1863,  Affaires  de  Pologne ;  Parliamentary  Papers, 
1863,  Vol.  75,  Poland  [3150]  ;  British  State  Papers,  Vol.  37, 
p.  1416-44;  Ibid,  Vol.  53,  p.  766-918;  Spencer  Walpole's  Life 
of  Lord  John  Russell  Vol.  II,  p.  380-384,  Ashley's  Life  of  Lord 
Palmerston  Vol.  II,  p.  230-33,  Annual  Summaries  reprinted 
from  The  Times  [London]  Vol.  I  (1893)  p.  161-5.;  Europais- 
cher  Geschichtskalender  by  H.  Schulthess  1863,  p.  245-71. 

26In  the  reports  which  Viscount  Castlereagh  sent  to  Lord 
Liverpool  from  Vienna,  1814-1815,  he  indicates  very  clearly 
that  his  opposition  to  the  Russian  design  of  incorporating  the 
occupied  Polish  territory  into  a  separate  monarchy  under 
the  sovereignty  of  Russia  was  due  to  the  interest  of  his  coun- 
try in  maintaining  the  balance  of  power  and  in  preventing 
Russia  from  acquiring  a  predominance  upon  the  Continent. 
Viscount  Castlereagh  evidently  found  Austria  and  Prussia 
little  desirous  of  resisting  the  Russian  designs.  In  his  dis- 
patch of  January  11,  1815,  to  the  Earl  of  Liverpool,  Viscount 
Castlereagh  remarks :  "I  am  convinced  that  the  only  hope  of 
tranquility  now  in  Poland  and  especially  of  preserving  to 
Austria  and  Prussia  their  portions  of  that  kingdom,  is  for  the 
two  latter  to  adopt  a  Polish  system  of  administration  as  a 


90  INTERNATIONAL   POLICE 

At  the  same  time  English  public  opinion  wished  to  se- 
cure for  the  Poles  some  adequate  guarantee  for  the 
preservation  of  their  national  institutions.  It  was 
eventually  agreed  to  include  in  the  Final  Act  articles 
in  which  Russia,  Prussia,  and  Austria  made  certain 


defense  against  the  inroads  of  the  Russian  policy."  (Parlia- 
mentary Papers,  1863,  vol.  75,  [3188],  No.  14.) 

In  the  same  dispatch  Viscount  Castlereagh  encloses  a  mem- 
orandum which  he  placed  officially  on  record  to  give  the  views 
of  the  British  Minister  on  the  matter.  With  slight  amend- 
ments, Lord  Castlereagh  addressed  this  in  the  form  of  a  cir- 
cular note  to  the  plenipotentiaries  of  the  Conference.  He  re- 
fers to  the  desire  of  his  court  to  see  a  free  and  independent 
state  under  a  distinct  dynasty  established  in  Poland.  The 
unwillingness  of  Austria  and  Prussia  to  oppose  the  Russian 
plan  is  alluded  to,  and  the  sincere  hope  expressed  that  none 
of  the  evils  which  he  has  feared  "...  may  result  from  this 
measure  to  the  tranquility  of  the  North,  and  to  the  general 
equilibrium  of  Europe,  which  it  has  been  his  painful  duty  to 
anticipate. ' ' 

The  memorandum  further  expresses  the  hope  that  "  . .  .the 
illustrious  Monarchs  to  whom  the  destinies  of  the  Polish  nation 
are  confided,  may  be  induced,  before  they  depart  from  Vienna, 
to  take  an  engagement  with  each  other  to  treat  as  Poles,  under 
whatever  form  of  political  institution  they  may  think  fit  to 
govern  them,  the  portions  of  that  nation  that  may  be  placed 
under  their  respective  sovereignties.  The  knowledge  of  such 
a  determination  will  best  tend  to  conciliate  the  general  senti- 
ment to  their  rule,  and  to  do  honor  to  the  several  Sovereigns  in 
the  eyes  of  their  Polish  subjects.  This  course  will  consequent- 
ly afford  the  surest  prospect  of  their  living  peaceably  and 
contentedly  under  their  respective  Governments. 

"If  such  should  happily  be  the  result,  the  object  which  His 
Royal  Highness  the  Prince  Regent  has  most  at  heart,  namely, 
the  happpiness  of  that  people,  will  have  been  secured ;  and  it 
will  only  remain  for  His  Royal  Highness  most  anxiously  to 
hope  that  none  of  those  dangers  to  the  liberties  of  Europe  may 
ever  be  realized  which  might  justly  be  apprehended  from  the 
reunion  of  a  powerful  Polish  Monarchy  with  the  still  more 
powerful  Empire  of  Russia,  if  at  any  time  hereafter  the  mili- 
tary force  of  both  should  be  directed  by  an  ambitious  and  war- 
like Prince."  (Parliamentary  Papers,  1863,  vol.  75,  [3188] 
No.  14.) 


OPPRESSION  91 

promises  in  regard  to  the  treatment  of  their  annexed 
Polish  possessions.27 

The  Russian  Tsar  in  fulfilment  of  his  promise  grant- 
ed the  Poles  a  constitution,  but  in  1830  when  the  French 
Revolution  shook  Europe,  the  Poles  rose  in  insurrec- 
tion and  demanded  their  independence.  The  uprising 
was  suppressed  and  the  constitution  abolished.  Lord 
Palmerston,  then  Secretary  for  Foreign  Affairs,  was 
supported  by  the  Government  of  Louis  Philippe  in  in- 
terceding for  the  Poles  and  in  registering  a  mild  pro- 
test.28 


27 Article  1.  The  Duchy  of  Warsaw,  with  the  exception  of 
the  provinces  and  districts  which  are  otherwise  disposed  of 
by  the  following  Articles,  is  united  to  the  Russian  Empire. 
It  shall  be  irrevocably  attached  to  it  by  its  Constitution,  and 
be  possessed  by  His  Majesty  the  Emperor  of  all  the  Russias, 
his  heirs  and  successors  in  perpetuity.  His  Imperial  Majesty 
reserves  to  himself  to  give  to  this  State,  enjoying  a  distinct 
administration,  the  interior  improvement  which  he  shall  judge 
proper.  He  shall  assume  with  his  other  titles  that  of  Tsar, 
King  of  Poland,  agreeably  to  the  form  established  for  the 
titles  attached  to  his  other  possessions. 

The  Poles,  who  are  respective  subjects  of  Russia,  Austria, 
and  Prussia,  shall  obtain  a  Representation  and  National  Insti- 
tutions, regulated  according  to  the  degree  of  political  consider- 
ation, that  each  of  the  Governments  of  which  they  belong  shall 
judge  expedient  and  proper  to  grant  them.  (Article  I,  of  the 
Final  Act  of  the  Treaty  of  Vienna,  Herstlet :  Map  of  Europe 
by  Treaty,  Vol.  I,  p.  216.) 

28In  the  diplomatic  correspondence  (see  British  State  Pa- 
pers, vol.  37,  under  Russia),  Lord  Palmerston  admitted  that 
because  of  the  delicacy  of  the  internal  situation,  the  British 
Government  wished  to  avoid  giving  any  offense  to  Russia. 
Under  these  circumstances  the  lion  roared  as  gently  as  a 
sucking  dove. 

In  his  instructions  of  March  22,  1831,  Lord  Palmerston 
wrote : 

"Your  Lordship  will,  of  course,  be  careful  not  to  take  any 
step  on  this  business  which  could  lead  to  any  unfriendly  dis- 
cussions with  the  Russian  Government,  with  whom  His  Maj- 
esty's Government  are,  under  present  circumstances,  more 
than  ever  desirous  of  keeping  up  the  closest  relations  of  friend- 
ship." (British  State  Papers,  Vol.  37,  p.  1418.) 


92  INTERNATIONAL   POLICE 

In  the  early  sixties  the  Polish  question  again  became 
acute,  and  the  Russian  Government  attempted  to  an- 
ticipate the  (taming  revolt  by  drafting  the  Polish  lead- 
ers into  the  army  in  violation  of  the  constitution  of 
1861  which  the  Russian  Government  had  granted  the 
Poles.29  This  arbitrary  act  infuriated  the  Poles  and 
incited  all  who  were  able  to  escape  to  engage  in  an 
internecine  war  for  Polish  independence. 

Liberal  Europe  was  aroused  and  the  pressure  of 
public  opinion  as  well  as  other  political  considerations 
induced  the  Liberal  Powers  to  enter  a  vigorous  pro- 
test against  the  Russian  measures  of  repression. 
France  and  Great  Britain  were  later  joined  by  Austria. 
The  latter  had  little  sympathy  for  the  grounds  upon 
which  the  western  powers  based  their  intervention  but 
she  feared  the  growing  intimacy  of  Russia  and  Prussia 
and  wished  to  avoid  a  dangerous  isolation  in  which  she 
would  find  no  counterbalancing  support.  Austria  had 
another  motive.  She  was  also  glad  to  purchase  im- 
munity from  agitating  her  own  Poles  by  the  more  lib- 
eral policy  which  she  adopted  in  her  treatment  of 
them.30 

Without  entering  any  further  into  the  interesting 
details  of  this  important  instance  of  humanitarian  in- 
tervention, undertaken  for  the  purpose  of  preventing 
the  oppression  of  the  Poles,  we  may  now  consider  what 
the  evidence  is  to  show  that  this  was  a  veritable  in- 
stance of  intervention,  in  which  the  protesting  powers 


29Lord  John  Russell  referring  to  Russia's  justification  for 
this  act  appropriately  remarked:  "No  argument  can  make 
it  right  to  turn  conscription  into  proscription."  (British 
State  Papers,  Vol.  53,  p.  780.) 

30The  main  lines  of  the  Austrian  policy  are  disclosed  in  the 
diplomatic  correspondence.  (See  British  State  Papers,  Vol. 
53,  p.  797,  813,  829-831,  834-841,  859-862,  910-911.) 


OPPEBSSION  93 

indicated  by  their  acts  their  evident  expectation  of  con- 
straining Russia  to  modify  her  treatment  of  the  Poles. 

That  the  action  of  France,  England,  and  Austria  was 
an  instance  of  intervention  relying  upon  the  armed 
force  of  the  cooperating  states  and  not  a  mere  inter- 
cession such  as  occurred  in  1832  is  shown  by  the  fol- 
lowing circumstances: 

In  the  first  place  the  language  employed  in  the  notes, 
— especially  the  official  statements  of  the  British  Sec- 
retary for  Foreign  Affairs, — was  so  minatory  as  to 
seem  a  presage  of  war  in  the  event  the  Russian  govern- 
ment should  not  yield.31 

31In  the  diplomatic  intercourse  of  great  states  language  such 
as  that  employed  by  Earl  Russell  the  British  Secretary  of 
State  for  Foreign  Affairs  can  have  but  one  meaning:  It  re- 
quires that  the  power  to  whom  it  is  addressed  yield  to  the 
menace  politely  conveyed  but  hardly  veiled.  Otherwise  war 
must  result  unless  the  protesting  or  threatening  power  prefers 
an  ignominious  retreat.  Since  the  traditions  of  Great  Britain 
gave  no  indication  that  she  would  choose  the  path  of  humili- 
ation, the  real  significance  of  Earl  Russell's  words  was  clear 
to  all.  (See  notes  of  March  2,  April  10,  and  June  17  in  the 
British  State  Papers,  Vol.  53,  p.  805-7,  863-6,  897-901.) 

Amply  sufficient  as  was  the  menacing  language  of  the  Brit- 
ish notes  to  indicate  presumably  the  intention  of  that  govern- 
ment to  employ  force  if  necessary,  this  impression  was  greatly 
strengthened  by  what  Earl  Russell  said  to  the  Baron  Brunnow, 
the  Russian  Ambassador,  in  the  course  of  an  informal  conver- 
sation relative  to  the  note  of  April  10th  about  to  be  dispatched. 
"Her  Majesty's  government,"  declared  Earl  Russell,  "had  no 
intentions  that  were  otherwise  than  pacific.  Still  less  any 
concert  with  other  powers  for  any  but  pacific  purposes. 

"But  the  state  of  things  might  change.  The  present  over- 
ture of  Her  Majesty's  government  might  be  rejected,  as  the 
representation  of  the  2nd  March  had  been  rejected  by  the  Im- 
perial Government.  The  insurrections  in  Poland  might  con- 
tinue and  might  assume  larger  proportions ;  the  atrocities  on 
both  sides  might  be  aggravated  and  extended  to  a  wider  range 
of  country.  If,  in  such  a  state  of  affairs,  the  Emperor  of  Rus- 
sia were  to  take  no  steps  of  a  conciliatory  nature,  dangers  and 
complications  might  arise  not  at  present  in  contemplation." 
(British  State  Papers,  Vol.  53,  p.  866-7.) 


94  INTERNATIONAL   POLICE 

In  the  second  place  the  efforts  made  to  organize  a 
collective  action  on  the  part  of  the  cooperating  powers 
when  Russia  had  disregarded  the  first  separate  repre- 
sentations of  France  and  Great  Britain  affords  still 
stronger  evidence  that  there  was  a  serious  intention 
to  constrain  Russia  to  heed  the  representations  ad- 
dressed to  her. 

Any  implication  of  menace,  which  the  statements 
relative  to  Poland  might  contain,  would  naturally  be 
greatly  increased  by  giving  them  the  collective  support 
of  several  powers.  England,  France  and  Austria 
reached  an  agreement  to  present  their  respective  notes 
of  protest  to  the  Russian  Government  upon  the  same 
date.32 

This  concurrent  action  lacked,  it  is  true,  some  of  the 
force  which  it  would  have  possessed  if  the  powers  had 
shown  their  unity  of  council  and  purpose  by  presenting 
identic  notes.33  But  in  this  instance  the  effect  of 


32The  British  Government  wished  to  organize  a  collective 
action  which  should  exercise  the  desired  constraint  upon 
Russia,  but  apparently  did  not  wish  to  be  committed  to  a  joint 
intervention  with  France  alone.  Austria  would  not  consent 
to  joint  action,  but  did  agree  to  a  concurrent  and  simultaneous 
presentation  of  notes  which  each  of  the  three  powers  had 
previously  communicated  to  the  others.  (For  the  diplomatic 
history  of  this  interesting  procedure,  see  British  State  Papers, 
Vol.  53,  p.  809,  811,  812-13,  813-14,  815,  830,  837,  840,  844,  849, 
850,  859,  861-2,  881-2,  890,  especially  861-2.) 

38Rarely  in  the  annals  of  diplomacy  has  a  more  incongruous 
crew  united  for  a  common  undertaking.  France  had  just  been 
trying  to  build  up  a  political  understanding  with  Russia  and 
wished  in  consequence  to  deflect  her  intervention  toward 
Prussia  on  the  ground  of  the  latter 's  interference  in  the  mat- 
ter. (See  British  State  Papers,  Vol.  53,  p.  809,  812,  826.) 
Great  Britain  was  desirous  of  preventing  the  Russification  of 
the  Polish  provinces,  because  she  was  apprehensive  of  an  in- 
crease of  Russian  power  and  because  she  sympathized  with  the 
Poles.  But  the  British  Government  distrusted  the  French 
designs  on  the  Rhine  and  were  unwilling  to  engage  with 
France  alone  in  any  joint  action  against  either  Prussia  or 


OPPRESSION  95 

their  concurrent  action  was  somewhat  increased  by  the 
supporting  representations  which  certain  of  the  smal- 
ler states,  Italy,  Spain,  Portugal,  and  Sweden,  made  in 
response  to  the  invitations  of  the  intervening  powers.34 
It  is  not  possible  to  consider  the  action  of  these 
smaller  states  as  intervention,  since  they  were  unwil- 
ling to  appear  to  go  beyond  the  ordinary  friendly  rep- 


Russia.  (British  State  Papers,  vol.  53,  p.  837,  867 ;  cf.  Mem- 
oirs of  Ernest,  Duke  of  Saxe-Coburg-Gotha,  Vol.  IV,  p.  116, 
ibid,  p.  127;  Count  Vitzthum's  Reminiscenses,  Vol.  II,  p. 
234,  240,  260.) 

Another  cause  of  dissension  was  that  Great  Britain  wished 
the  concurrent  action  of  the  powers  to  be  based  upon  Russia's 
violation  of  Article  I  of  the  Final  Act  of  Vienna  (British  State 
Papers,  Vol.  53,  p.  863-4,  cf.  806,  834,  836,  866).  The  French 
Emperor  whose  very  accession  to  the  throne  might  be  con- 
sidered a  violation  of  the  Treaty  of  Vienna,  even  although  he 
yielded  somewhat  to  British  insistence  and  referred  to  the 
action  taken  at  Vienna  (British  State  Papers,  Vol.  53,  p. 
827-8),  could  hardly  be  desirous  of  defending  treaties  which 
had  been  dictated  to  France  (British  State  Papers,  Vol.  53, 
p.  875). 

Strangest  of  all  was  Austria's  concurrence  in  view  of  her 
recent  (1846)  annexation  of  Cracow  in  violation  of  Articles 
VI  and  IX  of  the  Final  Act  (see  R.  Robin;  Occupations,  p. 
238-242),  and  in  view  of  Russia's  interference  in  1849  to  as- 
sist her  in  suppressing  the  Hungarian  revolution.  Could  Aus- 
tria, one  of  the  original  partitioning  powers  of  Poland,  give 
much  support  to  an  action  in  favor  of  the  Poles? 

These  various  causes  of  dissension  between  the  three  inter- 
vening powers  deprived  their  concurrent  representations  of 
some  of  the  force  which  they  would  otherwise  have  had. 

34Italy,  Spain,  Portugal,  and  Sweden  responded  to  the  in- 
vitation of  France  and  Great  Britain  (British  State  Papers, 
Vol.  53,  p.  812,  862,  890)  to  join  in  making  representations  in 
behalf  of  the  oppressed  Poles  and  these  states  cooperated  to 
the  extent  that  they  believed  expedient.  (British  State  Pa- 
pers, vol.  53,  p.  844-5,  850,  851,  874-5,  880,  886.) 

The  United  States  had  declined  to  intervene  on  the  ground 
of  its  policy  of  " non-intervention  in  European  affairs"  (Dip- 
lomatic Correspondence,  1863,  Part  I,  p.  667). 


96  INTERNATIONAL   POLICE 

reservations  which  are  free  from  any  thought  of  ulti- 
mate recourse  to  arms.35 

We  have  said  enough  to  show  that  the  concurrent 
representation  of  the  cooperating  powers  might  rea- 
sonably and  presumably  be  regarded  as  an  interven- 
tion by  the  Russian  Government  itself  and  by  public 
opinion  in  all  other  states  including  the  intervening 
states. 

Henry  Adams,  then  in  London  with  his  father,  the 
American  Minister,  wrote  May  8,  1863,  '  * . . .  and  the 
Polish  question  is  becoming  so  grave  that  we  are  let 
up  a  little"  (A  Cycle  of  Adams  Letters  1861-5,  Vol.  I, 
p.  296). 

35The  Swedish  Government  in  reply  to  the  invitation  or 
polite  suggestion  made  an  appeal  in  behalf  of  the  Poles,  but 
as  Count  Manderstrom  explained  to  the  British  representa- 
tive at  Stockholm  "he  had  thought  it  better  to  abstain  from 
entering  into  any  particulars  regarding  Polish  reform.  Since 
what  might  be  advisable  coming  from  England  might  be  the 
contrary  coming  from  Sweden. ' '  Count  Manderstrom  further 
said  "that,  in  fact,  though  he  did  not  think  Her  Majesty's 
Government  wrong  to  enter  upon  such  details,  he  thought  the 
Swedish  Goverment  right  to  abstain  from  them."  (British 
State  Papers,  Vol.  53,  p.  886.) 

The  representations  of  the  Italian  Government  were  still 
more  gentle,  if  we  may  rely  upon  Prince  Gortchakoff's  State- 
ment. (British  State  Papers,  Vol.  53,  880;  but  cf.  ibid,  p. 
875.) 

The  first  representations  which  the  French  Government 
made  at  St.  Petersburg  (Drouyn  de  Lhuys  to  the  Due  de 
Montebello,  Feb.  18,  1863,  British  State  Papers,  Vol.  53,  p. 
827-8,  cf.  p.  809,  787)  cannot  be  considered  as  anything  more 
than  intercession,  since  there  was  not  at  the  time  it  was  pre- 
sented any  indication  of  an  intention  to  insist.  Perhaps  had 
Bismarck  not  interfered  the  French  Government  would  not 
have  consented  to  take  further  action  against  Russia  notwith- 
standing French  sympathy  for  the  Poles. 

Similarly  in  1831-2,  the  British  Government  did  no  more 
than  intercede  for  the  Poles  and  closed  the  correspondence 
with  a  mild  protest  couched  in  the  most  friendly  language. 
(See  British  State  Papers,  Vol.  37,  p.  1418,  1428-9,  1436, 1439- 
1444.) 


OPPRESSION  97 

For  a  moment  Russia  felt  really  apprehensive,36  and 
Prince  Gortchakoff  expressed  a  willingness  to  consider 
the  representations  of  the  intervening  powers,  and  by 
his  language  seemed  expressly  to  invite  suggestions  as 
to  the  best  solution  of  the  difficulty  upon  the  basis  of 
and  in  conformity  with  the  provisions  of  the  Treaties 
of  Vienna  (British  State  Papers,  Vol.  53,  p.  892,  896-7, 
cf.  898).  It  was  not  long,  however,  before  Prince 
Gortchakoff  became  convinced  that  Great  Britain  would 
not  fight  for  Poland  and  that  Earl  Russell's  peremp- 
tory words  would  not  be  sustained  by  the  ministry  or  the 
British  public.37  He  must  also  have  calculated  upon  the 

30Lord  Napier  reporting  to  Lord  Russell  the  promulgation 
of  an  Imperial  manifesto  promising  reforms  and  pardons  to 
certain  of  the  insurrectionists  concluded:  "How  far  it  has 
been  prompted  by  the  expectation  of  foreign  intervention  I 
am  not  able  to  affirm  with  confidence ;  I  am  inclined  to  think 
it  may  have  been  accelerated  by  such  apprehensions,  but  it 
is  also  plainly  consistent  with  policy,  as  well  as  with  the  be- 
nevolent disposition  of  the  sovereign."  (British  State  Papers, 
Vol.  53,  p.  883.) 

37Earl  Russell  might  perhaps  have  achieved  a  diplomatic 
success  through  the  mere  presentation  of  emphatic  notes  if  he 
had  had  the  loyal  support  of  his  subordinate,  Lord  Napier, 
then  British  Ambassador  at  St.  Petersburg.  Lord  Napier 
seems  to  have  been  more  eager  to  preserve  peace  with  Russia 
than  he  was  to  cherish  his  country's  honor.  At  the  moment 
when  Russia  was  most  apprehensive  he  assured  his  Russian 
friends  that  Great  Britain  would  not  make  war  for  the  Polish 
cause.  (See  The  M.  P.  for  Russia,  Reminiscences  and  Corre- 
spondence of  Madame  Olga  Novikoff,  edited  by  W.  T.  Stead, 
1909,  p.  64  passim.)  If  he  acted  upon  his  own  responsibility 
in  snowing  Prince  Gortchakoff  Earl  Russell's  note  before  he 
presented  it  officially  he  helped  the  Russian  Vice-Chancellor 
to  humiliate  his  chief  (see  Lord  Redesdale:  Memories,  Vol. 
I,  p.  224-5,  quoted  below).  One  authority  states  that  Napier 
explained  to  Gortchakoff  that  the  note  was  merely  a  humane 
expression  and  that  it  would  entail  no  further  consequences. 
(St.  von  Kozmian,  Das  Jahr  1863,  Authorized  German  Edition 
by  S.  R.  Landau,  p.  297.) 

In  his  eagerness  to  assure  Russia  that  his  government  did 
not  mean  what  Earl  Russell's  language  fairly  implied  Lord 
7 


98  INTERNATIONAL   POLICE 

estrangement  between  the  Western  Powers  and  the 
advantage  Russia  derived  from  Prussia's  assistance. 
It  was  likewise  apparent  that  Austria  did  not  want 
war  if  she  could  avoid  it. 

This  was  Gortchakoff 's  opportunity  to  pay  back 
Earl  Russell  in  his  own  coin.  He  left  the  British  note 
unanswered  for  some  time  and  then  declined  to  accede 
to  the  suggestion  which  the  intervening  powers  had 
made.  The  note  which  Baron  Brunnow  was  instructed 
to  deliver  to  Earl  Russell  left  only  the  choice  of  an 
humiliating  acquiescence  or  recourse  to  arms.  (See 
British  State  Papers,  Vol.  53,  p.  901-907,  cf.  907-910, 
917).  As  Lord  Russell  himself  recognized  "...the 
question  came  to  be  whether  the  three  powers  should 
together  urge  their  demands  by  force  or  relinquish  the 
attempt."  (Spencer  Walpole's  Lord  Russell,  Vol.  I, 
p.  383) .  But  the  recollections  of  the  Crimean  war  were 
still  too  vivid  and  the  distrust  of  France  too  deep  for 
the  British  ministry  to  pick  up  the  gauntlet.38 

Napier  may  have  encouraged  Prince  Gortchakoff  to  play  at 
the  same  game  of  bluster  as  the  British  Secretary.  In  any 
event  he  was  fittingly  alarmed  at  the  possible  consequences  of 
the  Russian  reply  and  begged  from  Prince  Gortchakoff  some 
conciliatory  assurances  which  should  make  it  possible  for  his 
government  to  swallow  the  affront.  (British  State  Papers, 
Vol.  53,  p.  910.) 

38Lord  Redesdale  has  left  us  an  interesting  account  of  the 
melancholy,  though  ludicrous,  end  of  this  fiasco : 

"Lord  Russell  climbed  down  not  handsomely.  In  a  dis- 
patch to  Lord  Napier  of  the  llth  of  August  he  said :  'If  Rus- 
sia does  not  perform  all  that  depends  upon  her  to  further  the 
moderate  and  concilatory  views  of  the  three  Powers,'  Great 
Britain,  Austria  and  France,  'if  she  does  not  enter  upon  the 
path  which  is  opened  to  her  by  friendly  counsels,  she  makes 
herself  responsible  for  the  serious  consequences  which  the 
prolongation  of  the  troubles  of  Poland  may  produce.' 

"And  that  was  the  lame  and  impotent  conclusion  of  a 
game  of  brag  and  insolent  bluster  which  had  been  carried  on 
for  many  months.  The  fizzling  out  of  a  damp  squib ! 

"But  there  is  one  story  which  Mr.  Hennessy,  Conservative 
member  for  King's  County,  told  in  the  House  of  Commons, 


OPPRESSION  99 

And  thus  disappeared  all  hope  of  effective  action  to 
prevent  the  Russian  Government  from  oppressing  the 

and  was  never  contradicted,  which  is  too  good  and  too  char- 
acteristic to  be  omitted — I  take  it  verbatim  from  Lord  Salis- 
bury's essay  on  Foreign  Politics,  p.  202. 

"  'When  Prince  Gortchakoff's  last  defiance  had  arrived, 
and  the  Government  had  made  up  their  minds  to  practise  the 
better  part  of  valor,  Lord  Eussell  made  a  speech  of  Blair- 
gowrie,  and  being  somewhat  encouraged  and  cheered  by  the 
various  circumstances  of  consolation  which  are  administered 
by  an  entertainment  of  that  kind,  he  recovered  after  dinner 
somewhat  of  his  wonted  courage,  and  under  the  influence  of 
the  valor  so  acquired  he  proclaimed  that,  in  his  opinion,  Russia 
had  sacrificed  her  treaty  right  to  Poland.  Having  made  the 
statement  thus  publicly,  he  felt  that  he  could  not  do  less  than 
insert  it  into  the  dispatch  to  Prince  Gortchakoff,  with  whom  it 
was  proposed  to  terminate  the  inglorious  correspondence.  He 
flattered  himself,  indeed,  that  so  hostile  an  announcement, 
while  not  leading  actually  to  a  war,  might  enable  him  to  ride 
off  with  something  like  a  flourish,  which  his  friends  might  con- 
strue into  a  triumph. 

"  'And  so  the  dispatch  was  sent  off,  formally  bringing  the 
correspondence  to  a  close,  and  concluding  with  the  grandiose 
announcement  that,  in  the  opinion  of  the  British  Government, 
Russia  had  forfeited  the  title  to  Poland  which  she  had  acquired 
by  the  Treaty  of  Vienna.  But  even  this  modest  attempt  to 
escape  from  disgrace  was  not  destined  to  succeed.  When  the 
dispatch  reached  St.  Petersburg  it  was  shown  to  Prince  Gort- 
chakoff before  being  formally  presented.  '  You  had  better  not 
present  this  concluding  sentence  to  me,'  is  reported  to  have 
been  the  Prince's  brief  but  significant  observation.  The  hint 
was  taken,  the  dispatch  was  sent  back  to  England  and  sub- 
mitted anew  to  the  Foreign  Secretary.  Doubtless  with  disgust, 
but  bowing  to  his  inexorable  destiny,  he  executed  this  new  act 
of  self-abasement.  The  offending  sentence  was  erased  by  its 
author  with  the  resolution  of  a  Christian  martyr.  In  this 
form  it  was  sent  back  to  Russia;  and  it  still  bears,  as  pub- 
lished to  the  world,  in  the  bald  mutilation  of  the  paragraph 
with  which  it  concludes  and  in  the  confusion  of  its  dates,  the 
marks  of  its  enforced  and  reluctant  revision. ' 

"  'The  confusion  of  the  dates  is  very  significant.  The 
dispatch  was  originally  dated  in  September  and  refers  to  the 
dispatch  of  August  llth,  as  of  the  llth  ultimo.  As  accepted 
by  the  Prince  it  was  dated  in  October,  but  still  refers  to  the 
August  dispatch  as  of  the  llth  ultimo. 


100  INTERNATIONAL   POLICE 

Poles  by  denying  them  a  reasonable  degree  of  auton- 
omy and  the  continued  enjoyment  of  their  national 
language  and  institutions.  The  government  of  the 
"autocrat  of  all  the  Russias"  unchecked  by  the  Liberal 
Powers  and  aided  by  Prussia  crushed  out  the  desperate 
resistance  of  the  Polish  patriots. 

The  net  result  of  the  false  start  of  the  powers  was  to 
humiliate  Great  Britain39  and  to  mislead  the  unfortu- 
nate Poles,  who  might  reasonably  believe  that  the 
Liberal  Powers  would  not  withdraw  after  they  had  so 
far  committed  themselves  by  the  peremptory  and  cate- 
gorical language  of  their  representations.40 

"  'The  humiliation  of  England  was  complete.  We  had 
threatened  and  we  had  not  performed.  We  had  encouraged 
the  Poles  to  believe  that  they  might  count  upon  our  protection, 
and  when  we  found  that  something  more  than  brave  words 
would  be  needed,  we  deserted  them.  That  was  the  view  taken 
abroad  of  Lord  Russell 's  policy.  It  was  treated  with  derision 
and  contempt.  In  Russia  there  was  at  that  time  a  very  strong 
feeling  of  friendliness  towards  the  English.  But  it  was  a 
social  friendship,  not  a  political  appreciation,  and  I  believe 
that  was  largely,  perhaps  one  might  say  entirely,  due  to  the 
great  personal  charm  and  popularity  of  Lord  and  Lady 
Napier.  As  a  power  to  be  reckoned  with  we  had  ceased  to 
exist.'  '  (Lord  Redesdale:  Memories,  Vol.  I,  p.  224-5.) 

39See  Reminiscences  of  Count  Vitzthum,  edited  by  Henry 
Reeve,  vol.  II,  p.  250 ;  Correspondence  of  Sir  William  White, 
edited  by  H.  Southerland  Edwards,  p.  54-5. 

40It  would  have  been  well  for  Lord  John  Russell  had  he 
taken  pattern  from  Lord  Palmerston's  conduct  of  the  Polish 
negotiations  of  1831-33.  July  3,  1832,  in  his  instructions  to 
Lord  Durham,  then  on  a  mission  to  St.  Petersburg,  Palmers- 
ton  warned  him  that  the  remonstrances  of  Great  Britain  and 
France,  lacking  as  they  did  the  support  of  Austria  and  Prussia, 
"...  could  not  be  effectual  unless  they  had  been  supported  by 
a  threat  of  war — a  threat  to  the  execution  of  which  so  many 
obstacles  were  opposed  both  by  the  general  state  of  Europe 
and  by  the  negotiations  in  which,  in  concert  with  Russia, 
Great  Britain  has  been,  and  still,  is,  engaged." 

"In  adverting,  therefore,  to  the  affairs  of  Poland,"  wrote 
Lord  Palmerston  in  the  same  dispatch,  "great  delicacy  and 
caution  will  be  required.  It  would  be  inconsistent  with  the 


OPPRESSION  101 

It  remains  for  us  to  show  that  the  intervention  of 
Great  Britain,  France,  and  Austria  is  to  be  classed  as 
humanitarian.  It  cannot  be  doubted  that  the  wish  to 
protect  the  Poles  from  Russian  oppression  and  to  se- 
cure for  them  a  reasonable  recognition  of  their  national 
aspirations  was  the  motive  back  of  the  governmental 
initiative  of  the  Western  or  Liberal  Powers.  It  is  rea- 
sonable to  assume  that  this  was  the  original  impulse 
which  caused  the  intervention  when  we  note  the  ex- 
traordinary sympathy  shown  for  the  Polish  insurrec- 
tionists in  all  parts  of  Europe. 

The  people  of  England  and  France  and  of  the  other 
countries  of  Europe  had  not  forgotten  the  ruthless 
manner  in  which  Nicholas  I,  in  1832,  had  crushed  out 
the  Polish  uprising.  Everywhere  the  Polish  patriots 
found  a  strong  and  popular  support.  The  excitement 
aroused  in  England,  says  Lord  Redesdale,  amounted 
to  intoxication  (Memories,  Vol.  II,  p.  217).  In  the  of- 
ficial representations  which  Napoleon  III  made  at  St. 
Petersburg,  the  question  of  Poland  is  spoken  of  as  one 
which  by  exception  is  supported  by  all  factions  in 
France  (British  State  Papers,  Vol.  53,  p.  827).  From 
Stockholm,  the  British  representative  reported  that 
Prince  Czartoriski  was  given  a  warm  welcome  at  a 
great  banquet  attended  by  two  hundred  of  the  notable 
citizens,  and  that  he  was  received  by  the  sovereign 
(Ibid,  p.  853-8).  From  Berne  came  the  report  of  Swiss 
sympathy  and  indignation  at  the  brutal  conscription  of 
the  Polish  leaders  (Par.  Papers  1863,  Vol.  75  [3150] 
No.  94).  It  was  to  be  expected  that  Italy,  the  propon- 
ent of  the  rights  of  nationalities,  would  be  deeply 
moved  by  the  events  in  Poland  (British  State  Papers, 
Vol.  53,  p.  875,  cf.  ibid,  p.  880). 

power  and  dignity  of  the  British  Empire  to  insist  too  strongly 
upon  points  which,  from  the  considerations  stated  above,  it 
might  be  inexpedient,  if  not  impossible,  to  enforce  by  arms. ' ' 
(British  State  Papers,  vol.  37,  1848-49,  cf.  p.  1439-1440.) 


SANTA  BARBARA  STATE  COLLEGE 


LIBRA*, 


102  INTERNATIONAL   POLICE 

Evidently  this  sentiment  in  favor  of  the  insurrec- 
tionists was  too  widespread  and  too  profound  to  be 
ignored  by  governments  dependent  upon  popular  sup- 
port.41 

41A  few  extracts  from  the  Diplomatic  Correspondence  will 
show  how  conscious  the  governments  were  of  this  strong  pub- 
lic sentiment  in  favor  of  the  Poles. 

The  French  note  of  February  18  contains  the  following 
passage:  "But  the  Polish  question  more  than  any  other  is 
privileged  to  arouse  in  France  the  keenest  sympathy  of  all 
parties.  In  this  respect  they  are  unanimous;  the  language 
employed  by  the  most  zealous  defenders  of  Monarchy  and  re- 
ligious doctrines  differs  only  but  slightly  from  that  of  the 
most  advanced  democratic  organs.  What  can  we  answer  to 
statements  which  are  based  upon  public  law  [international 
law]  and  which  do  no  more  than  appeal  to  the  most  incontro- 
vertible principles.  Not  only  are  we  powerless  to  reply  to 
such  articles,  but,  deriving  as  we  do  our  strength  from  public 
opinion,  we  are  obliged  to  take  into  account  opinions  which 
this  country  has  entertained  for  so  many  years."  (British 
State  Papers,  Vol.  53,  p.  827.) 

The  subsequent  note,  presented  April  17th,  declares:  "The 
insurrection  of  which  the  Kingdom  of  Poland  is  at  present 
the  theatre  has  awaked  in  Europe  a  lively  anxiety,  in  the  midst 
of  a  repose  which  no  near  event  seemed  likely  to  disturb.  The 
lamentable  effusion  of  blood  of  which  this  contest  is  the  cause, 
and  the  painful  incidents  which  mark  it,  are  exciting,  at  the 
same  time,  an  emotion  as  general  as  it  is  profound."  (Ibid, 
p.  862,  Translation  in  Parliamentary  Papers,  1863,  Vol.  75, 
Poland,  [3150]  No.  136.) 

The  British  note  dated  April  10,  but  presented  at  the  same 
time  as  the  French  note,  alludes  incidentally  to  the  pressure 
of  public  opinion:  "The  general  sympathy  which  is  felt  for 
the  Polish  Nation  might  of  itself  justify  Her  Majesty's  Go«v- 
ernment  in  making,  in  favor  of  the  Polish  race,  an  appeal  to 
the  generous  and  benevolent  feelings  of  His  Imperial  Ma- 
jesty." (Ibid,  p.  863.) 

Further  along  in  the  same  note:  "The  disturbances  which 
are  perpetually  breaking  out  among  the  Polish  subjects  of 
His  Imperial  Majesty  necessarily  produce  a  serious  agitation 
of  opinion  in  other  countries  of  Europe,  tending  to  excite 
much  anxiety  in  the  minds  of  their  Governments,  and  which 
might,  under  possible  circumstances,  produce  complications 
of  the  most  serious  nature."  (Ibid,  p.  865,  cf.  similar  ex- 


OPPRESSION  103 

Unfortunately  the  cooperating  powers  did  not  un- 
derstand the  perfect  justification  which  humanitarian 
considerations  could  give  to  their  concurrent  interven- 
tion. The  inevitable  consequence  of  this  misunder- 
standing was  that  they  weakened  the  force  of  their 
action  and  wasted  their  strength  in  futile  efforts  to  dis- 
cover some  other  common  ground  upon  which  to  base 
their  demands.  But  despite  all  their  efforts  Great 
Britain  and  France  did  not,  as  will  be  seen,  succeed  in 
discovering  any  ground  other  than  that  by  which  they 
set  so  little  store — humanity. 

Neither  England  or  France  could  base  its  action  on 
the  ground  that  the  events  in  Poland  were  a  menace  to 
national  peace  and  security  such  as  to  justify  interven- 
tion on  the  generally  admitted  ground  of  self-preser- 


pressions  in  the  Austrian  note  prepared  for  concurrent  pres- 
entation, ibid,  p.  861.) 

In  his  note  of  August  11,  Lord  John  Russell  in  reply  to  the 
complaints  of  Prince  Gortchakoff ,  said :  "  It  is  true,  however, 
that  lively  sympathy  has  been  excited  in  Europe  in  favor  of 
the  Poles.  In  every  considerable  State  where  there  exists  a 
national  representation, — in  England,  in  France,  in  Austria, 
in  Prussia,  in  Italy,  in  Spain,  in  Portugal,  in  Sweden,  in  Den- 
mark,— that  sympathy  has  been  manifested.  Wherever  there 
is  a  national  administration,  the  administration  has  shared, 
though  with  prudence  and  reserve  in  expression,  the  feelings 
of  the  legislature  and  the  nation."  (Ibid,  p.  913.) 

Even  in  Prussia,  where  the  government  had  adopted  Bis- 
marck's policy  of  cooperation  with  Russia  to  crush  out  the 
Polish  insurrection,  there  was  a  strong  movement  in  favor  of 
the  Poles.  In  the  Prussian  House  of  Representatives,  Herr 
Waldeck  said,  in  the  course  of  his  scathing  denunciation  of 
Bismarck 's  policy  :  ' '  There  was  a  policy  which  Prussia  might 
have  followed;  she  might  in  a  friendly  manner  have  offered 
her  advice  to  Russia,  and  warned  her  of  the  dangers  she  in- 
curred by  abandoning  the  road  of  legality  and  ordering  the 
barbarous  conscription  which  has  called  forth  the  present  re- 
bellion." (British  State  Papers,  Vol.  53,  p.  794,  cf.  ibid,  p. 
789.) 


104  INTERNATIONAL   POLICE 

vation,42  for  it  was  easy  for  the  Russian  vice-chancellor 
to  point  out  that  the  prolongation  of  the  insurrection 
was  due  to  the  material  assistance  and  the  moral  sup- 
port which  the  Poles  received  from  abroad.43 

The  failure  of  the  intervening  powers  to  police  their 
territory  and  to  prevent  the  Polish  patriots  from  using 
it  as  a  base  of  hostile  operations  would  have  to  be  justi- 
fied before  they  were  at  liberty  to  blame  Russia  for 
negligence  to  which  they  were  themselves  patently 
contributory.44 

42See  below  §  16.  In  the  opinion  generally  held  by  states- 
men of  that  period  national  security  or  self-preservation  was 
a  sufficient  and  the  strongest  justification  for  action  which 
otherwise  would  have  been  reprehensible  interference.  We  do 
not  wish  to  appear  to  approve  of  this  argument,  but  merely  to 
point  out  that  it  was  not  in  point. 

The  peculiar  situation  of  Austria  permitted  her  alone  to 
derive  support  from  this  argument  of  national  security,  and 
she  did  in  fact  use  it  with  much  force.  (See  British  State 
Papers,  vol.  58,  p.  860-1.)  Earl  Russel  referring  to  the  Aus- 
trian justification  on  this  ground  remarks  with  seeming  acqui- 
escence: "The  freedom  of  France  and  England  from  appre- 
hensions of  this  kind  is  dwelt  upon  with  marked  distinctness. ' ' 
(Ibid,  p.  813.) 

43See  British  State  Papers,  Vol.  53,  p.  833,  880-881,  895.  897, 
903,  907.  Cf.  Earl  Russell's  attempted  rejoinder,  ibid,  p.  913. 
Phillimore  discusses  the  obligation  of  States  to  police  their 
territory  and  to  prevent  its  use  as  a  base  of  hostile  prepara- 
tions. See  Phillimore 's  Commentaries,  1  ed.  1854,  Vol.  I,  § 
217,  p.  228-230.  This  question  is  considered  below  under  §  15. 
An  accusation  of  a  similar  nature  was  made  by  Russia  in  1832, 
namely  that  the  Polish  insurrection  was  only  sustained  by  the 
hope  of  foreign  intervention.  (Cf.  Nesselrode  to  Lieven  Jan. 
3,  1832.  British  State  Papers,  Vol.  37,  p.  1434.) 

44If  it  should  first  be  shown  that  intervention  was  justi- 
fiable upon  some  other  ground,  such  as  the  violation  of  treaty 
rights  or  humanity,  the  failure  of  the  intervening  powers  to 
police  their  territory  could  then  be  defended  as  in  the  nature 
of  a  passive  or  constructive  intervention,  or  else  it  might  have 
been  regarded  as  retaliatory.  As  we  shall  later  show  that 
humanity  was  the  real  justification,  we  may  rightly  consider 
that  this  failure  of  the  government  to  prevent  its  territory  from 


OPPRESSION  105 

For  the  reasons  just  given,  the  Western  Powers  could 
not  make  much  of  a  case  when  they  appealed  to  Rus- 
sia to  refrain  from  prolonging  a  condition  which  was 
likely  to  disturb  the  peace  of  Europe.45  Here  also  it 
was  necessary  to  find  some  ground  to  justify  the  hos- 

serving  as  a  base  from  which  to  carry  on  operations  of  war- 
like resistance  to  the  Russian  Government  was  a  justifiable 
instance  of  negative  or  passive  humanitarian  intervention. 
We  might  say  humanitarian  intervention  by  indirection,  or 
constructive  humanitarian  intervention. 

There  was  perhaps  some  subconscious  feeling  of  this  justi- 
fication for  the  failure  to  police  the  territory  when  in  his 
note  of  August  11,  1863,  Earl  Russell,  in  reply  to  the  com- 
plaints of  Prince  Gortchakoff ,  remarked :  ' '  Unless  the  general 
feeling  in  Poland  had  been  estranged  from  Russia,  the  moral 
and  material  assistance  afforded  from  abroad  would  have 
availed  the  insurgents  little."  (Ibid,  p.  913.) 

45In  his  representations  of  March  2,  1863,  Earl  Russell 
added  to  the  treaty  as  a  ground  of  justification  the  interest  of 
European  peace.  He  wrote :  ' '  Great  Britain,  therefore,  as  a 
party  to  the  treaty  of  1815,  and  as  a  power  deeply  interested 
in  the  tranquility  of  Europe,  deems  itself  entitled  to  express 
its  opinion  upon  the  events  now  taking  place. ' '  (British  State 
Papers,  Vol.  53,  805-6.) 

The  British  note  of  April  10  contained  the  following :  ' '  The 
condition  of  things  which  has  now  for  a  long  course  of  time 
existed  in  Poland  is  a  source  of  danger  not  to  Russia  alone, 
but  to  the  general  peace  of  Europe."  (Ibid,  p.  865.) 

The  French  concurrent  note  presented  at  the  same  date  con- 
tained similar  statements  as  to  the  regrettable  complications 
likely  to  result  from  prolonged  disturbances  in  Poland.  (Ibid, 
p.  862.) 

The  Austrian  note  may  perhaps  have  been  the  source  of  this 
attempt  to  find  some  common  ground  of  action  for  Earl  Rus- 
sell in  his  instructions  of  April  4  to  the  British  Ambassador 
at  Paris  wrote:  "But  the  latter  part  [of  the  communicated 
Austrian  note]  appears  to  Her  Majesty's  Government  very 
important.  It  shadows  forth  ulterior  consequences  which,  ac- 
cording to  the  present  views  of  the  Russian  Government,  are 
too  likely  to  be  realized.  These  consequences,  it  is  declared, 
may  be  calamitous  to  all  Europe,  and  the  conflicts  which  may 
then  be  revived  may  give  rise,  it  is  said,  to  complications  to  be 
regretted."  (British  State  Papers,  Vol.  53,  p.  850.  The 
Austrian  note  is  given  ibid,  p.  861 ;  cf.  also  p.  859.) 


106  INTERNATIONAL   POLICE 

tile  use  of  their  territory  by  the  insurgents  before  they 
could  blame  Russia  for  the  disturbance  of  the  Euro- 
pean peace.  Until  they  had  absolved  themselves  they 
were  to  be  regarded  as  in  part  responsible  for  the  dis- 
turbance of  which  they  complained,  and  this  defect  in 
their  logic  was  not  lost  upon  Prince  Gortchakoff.  The 
Russian  vice-chancellor  remarking  upon  Lord  Rus- 
sell's appeal  to  Russia  as  a  member  of  the  Society  of 
European  States  to  fulfil  her  duties  of  comity  towards 
the  other  states,  replied  that  Russia  was  too  directly 
interested  in  the  peace  of  Poland  not  to  appreciate  its 
international  obligations.  "It  would  be  difficult,"  he 
added, ' '  to  affirm  that  she  had  in  this  respect  met  with 
a  scrupulous  reciprocity."  At  the  close  of  this  note 
he  appealed  to  the  powers  who  desired  to  see  Poland 
pacified  to  strive  on  their  part  to  check  the  spread  of 
moral  and  physical  disorders  in  Europe  and  thus  to 
remove  the  principal  source  of  the  disturbances  which 
alarm  them  for  the  future  (see  British  State  Papers, 
Vol.  53,  p.  897,  Cf.  833,  880-1,  895,  903,  907). 

Russia's  disregard  of  the  stipulation  contained  in 
Article  I  of  the  Final  Act  of  Vienna  seemed  to  offer  a 
justifiable  basis  for  representations  in  behalf  of  the 
Poles.  The  British  Government  that  had  been  mainly 
instrumental  in  securing  the  adoption  of  this  Article 
in  1815,  referred  to  it  in  1863  as  it  had  in  1832  and 
made  it  the  principal  ground  of  protest  against  Russian 
tyranny.  (See  British  State  Papers,  Vol.  53,  p.  806, 
834,  836,  863-4,  898,  912-916,  918.  For  action  in  1831-2, 
see  ibid,  Vol.  37,  p.  1417,  1422,  1430,  1437,  1439-1444.) 

Unfortunately  this  basis  of  action  was  neither  wise 
in  policy  nor  sound  in  law.  It  was  not  politically  ex- 
pedient because  the  French  Government  could  not  be 
expected  to  show  much  enthusiasm  in  supporting  the 
provisions  of  a  treaty  which  was  known  to  have  been 
dictated  to  France  at  the  sword's  point.  There  had, 


OPPRESSION  107 

furthermore,  been  so  many  modifications  and  viola- 
tions of  the  Treaty  of  Vienna  that  no  one  could  be  cer- 
tain what  provisions  were  still  in  force  and  in  how 
far  any  power  was  justified  in  making  counterbalanc- 
ing modifications  to  compensate  for  those  which  were 
inimical  to  its  own  interests.  The  most  serious  legal 
objection  to  the  argument  based  upon  the  treaty  was 
the  obvious  fact  that  a  treaty  cannot  create  a  right  of 
interference  in  the  internal  affairs  of  a  sovereign  in- 
dependent state  even  though  the  government  thereof 
signs  and  ratifies  the  act  or  sponsion  which  attempts 
in  express  words  to  confer  such  a  right.46 


46For  a  fuller  discussion  of  this  question,  see  below  §  19. 
It  is  nevertheless  true  that  a  reasonable  restriction  of  the  rights 
of  a  sovereign  state  may  be  incorporated  in  a  treaty  and  en- 
forced by  other  states  when  such  restriction  is  recognized  as 
necessary  for  the  security  of  all  the  states  (see  §§9  and  17). 
But  it  is  evident  from  the  diplomatic  correspondence  at  the 
time  of  the  negotiation  of  the  treaty  that  the  stipulation  in 
question  was  not  adopted  as  a  result  of  any  general  under- 
standing that  it  was  for  the  common  interest.  It  was  adopted 
for  two  other  reasons :  firstly  and  mainly,  because  Great  Bri- 
tain feared  Russia's  preponderance  in  the  east  of  Europe,  (see 
British  State  Papers,  Vol.  37,  p.  1417-1420),  and  secondly,  in 
order  to  assure  to  the  Poles  reasonable  recognition  of  their  na- 
tional aspirations.  How  secondary  this  latter  consideration 
was  to  Great  Britain,  who  was  mainly  instrumental  in  securing 
the  insertion  of  the  article,  is  shown  by  her  efforts  to  secure  a 
complete  partition  of  the  Polish  provinces  rather  than  to  per- 
mit the  organization  of  a  quasi-independent  Poland  under  the 
sovereignty  of  Russia.  (See  Parliamentary  Papers,  1863, 
Vol.  75  [3188]  cited  above.) 

It  would  thus  appear  that  the  main  reason  for  the  insertion 
of  the  provisions  in  regard  to  Poland  was  to  serve  the  political 
object  that  England  and  France  had  in  view,  namely  to  pre- 
vent Russia  from  acquiring  full  military  control  of  Poland. 
(See  also  British  State  Papers,  Vol.  37,  p.  1417-1418.)  Even 
though  Russia  signed  the  treaty,  it  could  not  give  other  powers 
a  right  of  interference  on  political  grounds. 

We  shall  revert  again  to  the  value  of  the  article  as  a  basis 
of  humanitarian  intervention.  In  regard  to  the  value  of  the 


108  INTERNATIONAL   POLICE 

Although  the  Governments  seem  not  to  have  under- 
stood this  principle  of  international  law,  their  ignor- 
ance could  not  save  them  from  confusion  and  contra- 
diction when  they  attempted  to  make  the  treaty  a  justi- 
fication for  acts  which  they  would  otherwise  have  con- 
sidered as  constituting  an  unjustifiable  interference  in 
the  internal  affairs  of  Kussia. 

It  is  not  suprising  that  Prince  Gortchakoff  was  wil- 
ling to  meet  the  British  Government  on  this  ground 
which  was  to  be  sure  no  terra  firma,  but  a  veritable 
quagmire  (British  State  Papers,  Vol.  53,  p.  896,  897; 
ibid,  Vol.  37,  p.  1419,  1421,  1424,  1431-2).  With  a  foot- 


treaty  as  a  basis  of  action  it  will  be  of  interest  to  quote  certain 
passages  from  the  diplomatic  correspondence : 

"In  an  ordinary  case  of  civil  war  between  a  sovereign  and 
his  subject,  foreign  states  can  have  no  grounds  for  interfer- 
ence, even  by  advice  or  remonstrance;  but  there  are  circum- 
stances peculiar  to  the  Kingdom  of  Poland  which  make  it  in 
this  respect  an  exception  to  the  general  rule."  (Palmerston 
to  Lord  Heytesbury,  March  22,  1831;  British  State  Papers, 
Vol.  37,  p.  1416.) 

"His  Majesty's  Government  is  fully  sensible  of  the  delicacy 
of  the  questions  at  issue,  involving,  as  they  do,  the  relations 
between  a  sovereign  and  his  subjects;  matters  upon  which, 
under  ordinary  circumstances,  and  when  those  relations  are 
not  interwoven  with  the  stipulations  of  treaties,  the  most  well- 
meant  and  friendliest  interposition  must  at  best  be  of  doubtful 
expediency."  (Palmerston  to  Lord  Heytesbury,  March  12, 
1832,  British  State  Papers,  Vol.  37,  p.  1436.) 

But  Lord  Heytesbury  seems  to  have  had  some  understand- 
ing of  the  limits  of  interference  based  upon  a  treaty,  for  in 
his  report  of  October  1, 1831,  he  writes : 

' '  Indeed,  it  might  be  impossible  for  foreign  powers  to  guar- 
antee a  particular  and  unchangeable  form  of  government  to 
any  country."  (British  State  Papers,  Vol.  37,  p.  1423.)  And 
further  along  in  the  same  report  Lord  Heytesbury  indicates 
of  how  little  value  he  considered  the  Article  as  a  basis  for  pro- 
test: 

1 '  I  have, ' '  writes  the  British  Ambassador,  ' '  been  constantly 
assured  in  reply,  that  the  stipulations  of  the  Treaty  of  Vienna 
will  be  strictly  attended  to,  but  this  assurance  amounts  to  lit- 
tle or  nothing,  for  the  stipulations  themselves  amount  to  little 
or  nothing. ' '  ( Ibid,  p.  1424. ) 


OPPRESSION  109 

ing  so  insecure  Earl  Russell  could  hardly  succeed  in 
his  battle  of  words  to  find  a  legal  justification  for  the 
British  intervention.47 

But  when  all  the  specious  grounds  of  support  for 
intervention  on  the  basis  of  the  Treaty  of  Vienna  have 
been  refuted,  it  is  still  possible  to  consider  the  pro- 
visions of  Article  I  of  the  Final  Act  as  Russia's  prom- 
ise that  she  would  grant  to  the  Poles  such  reasonable 
recognition  of  their  rights  of  self-government  and 
nationality  as  should  accord  with  the  prevalent  senti- 
ments of  humanity.  Viewed  in  this  light,  Article  I  of 
the  Treaty  of  Vienna  would  not  authorize  an  unjusti- 
fiable interference  in  the  internal  affairs  of  an  inde- 
pendent state,  but  would  be  merely  the  formulation  of 
the  rights  which  international  law  guarantees  to  a  sub- 
ject people.  In  the  event  of  a  failure  to  grant  this 
minimum  of  right,  any  state  would  have  the  right,  and 
all  the  nations  would  have  the  obligation,  in  so  far 
as  the  circumstances  would  allow,  to  undertake  an 
intervention  on  this  ground  of  humanity.  That  is  for 
the  purpose  of  compelling  the  transgressing  suzerain 


47Earl  Russell  seems  to  have  been  so  ignorant  of  the  funda- 
mental principles  of  international  law  that  he  was  not  able 
even  to  refute  the  preposterous  argument  advanced  by  Russia 
that  the  treaty  provision  in  favor  of  the  Poles  had  been  abro- 
gated by  the  right  of  conquest  after  the  suppression  of  the  in- 
surrection of  1832.  (British  State  Papers,  Vol.  53,  p.  864; 
cf.  ibid,  vol.  37,  p.  1417,  1428,  1432,  1438.)  Professor  Rossi 
in  his  review  of  Wheaton's  work  criticizes  that  writer  for 
speaking  of  the  ' '  reconquest ' '  of  Poland.  ' '  One  does  not, ' '  says 
Rossi,  "conquer  oneself"  (Archives  de  droit  et  de  legislation, 
Vol.  I,  p.  356 ;  Stapleton :  Intervention,  p.  136-7,  in  a  some- 
what ambiguous  statement,  falls  into  the  same  error  as  Whea- 
ton  and  Russell.) 


110  INTERNATIONAL   POLICE 

to  fulfill  his  internationally  recognized  obligations  to- 
wards the  Poles.48 

Again  we  are  brought  back  to  humanity  as  the  basis 
of  the  action  against  Russia  which  the  British  Govern- 
ment vainly  thought  to  find  in  the  treaty  alone. 

Notwithstanding  these  attempts  to  find  a  ground  of 
justification  more  satisfactory  than  humanity,  the  in- 
tervening powers  did,  withal,  concurrently  and  some- 
times incidentally,  refer  to  considerations  of  humanity. 
But  they  did  it  hesitatingly — almost  shamefacedly — 
as  though  this,  the  only  juridical  basis  upon  which 
their  action  could  be  defended,  was  not  one  which 


48Even  in  1832  when  Great  Britain  and  France  had  no  in- 
tention of  doing  more  than  intercede  by  friendly  council  in 
favor  of  the  Poles,  the  existence  of  Article  I  was  of  great  value 
as  a  formulation  of  Russia's  obligation  towards  the  Kingdom 
of  Poland.  This  appears  in  Lord  Heytesbury  's  report  to  Lord 
Palmerston  of  January  2,  1832,  in  which  he  wrote : 

' '  It  must  not,  however,  be  concluded  that  our  efforts  in  favor 
of  the  Poles  have  been  entirely  thrown  away.  It  will  be  suf- 
ficient to  cast  our  eyes  towards  the  Russo-Polish  provinces 
not  included  in  the  Kingdom  of  Poland,  and,  consequently, 
out  of  the  reach  of  foreign  intervention,  to  be  convinced  of  the 
contrary.  In  the  Kingdom  of  Poland,  setting  out  of  the  ques- 
tion those  accused  of  assassination  and  the  officers  of  the  three 
corps  of  Kaminski,  Rybinski,  and  Ramorino,  who  form  a  class 
apart,  and  who  are  now  gradually  returning  to  their  homes, 
upon  consenting  to  renew  their  oaths  of  allegiance,  there  are 
not  above  20  individuals  excluded  from  the  amnesty,  or  who 
will  suffer  for  their  political  conduct.  But  in  the  Russo-Polish 
provinces  incorporated  with  the  Empire,  confiscation  of  prop- 
erty, exile,  or  deportation  to  Siberia  are  the  general  lot.  Not 
an  individual  has  been  suffered  to  escape  who  took  any  active 
part  in  the  Revolution.  This  different  measure  of  punish- 
ment, though  it  speaks  little,  perhaps,  in  favor  of  the  clem- 
ency of  this  Government,  shows  clearly  the  effect  of  foreign 
intervention.  We  may  not  have  gained  much;  but  we,  at 
least,  have  the  consolation  of  reflecting  that  the  course  pur- 
sued would  have  been  infinitely  more  severe  had  we  not  taken 
the  line  we  did."  (British  State  Papers,  Vol.  37,  p.  1430.) 


OPPRESSION  111 

they  cared  to  present  as  the  real  justification  of  their 
intervention.49 

It  is  to  be  regretted  that  the  right  of  intervention 
upon  the  ground  of  humanity  should  have  been  so  little 
understood.  If  the  cooperating  powers  had  justified 
their  action  upon  the  ground  of  humanity  to  prevent 
the  oppression  of  the  Poles,  they  might  have  overcome 
every  argument  of  Russia,  and  they  would  have  had 
back  of  them  a  very  strong  popular  support  in  all  parts 

49Earl  Russell  in  his  note  of  March  2,  to  the  Russian  Gov- 
ernment expressed  similar  views:  ''However  much  Her 
Majesty's  Government  might  lament  the  existence  of  such  a 
miserable  state  of  things  in  a  foreign  country,  they  would  not, 
perhaps,  deem  it  expedient  to  give  formal  expression  to  their 
sentiments,  were  it  not  that  there  are  peculiarities  in  the 
present  state  of  things  in  Poland  which  take  them  out  of  the 
usual  and  ordinary  condition  of  such  affairs."  (Ibid,  p.  806.) 
The  peculiarities  referred  to  were,  of  course,  the  provisions  of 
the  Treaty  of  Vienna. 

Lord  Russell,  in  his  note  of  April  10  to  Russia,  repudiates 
completely  any  right  of  intervention  upon  grounds  of  human- 
ity alone  when  he  admits  that  in  the  absence  of  treaty  stipu- 
lations the  constitutional  rights  of  the  Poles  might  have  been 
declared  forfeited  after  the  suppression  of  their  revolt. 
(British  State  Papers,  Vol.  53,  p.  864.) 

In  a  preceding  portion  of  this  same  note  Earl  Russell  may, 
perhaps,  be  considered  by  implication  to  deny  humanity  as  a 
basis  for  intervention  when  he  indicates  that  the  sympathy 
of  public  opinion  would  have  justified  an  "appeal" — that  is, 
friendly  intercession — "to  the  generous  and  benevolent  feel- 
ings of  His  Imperial  Majesty."  Similar  disclaimers  of  any 
right  of  intervention  on  the  ground  of  humanity  made  in 
1832  will  be  found  in  an  extract  already  quoted.  (See  Pal- 
merston  to  Lord  Heytesbury  March  12,  1832,  British  State 
Papers,  Vol.  37,  p.  1436.) 

In  his  note  of  February  21,  to  the  French  Ambassador  at 
London,  M.  Drouyn  de  Lhuys  remarks  of  the  disturbances 
prior  to  Prussia's  interference  by  the  signing  of  the  Aven- 
sleben  Agreement :  ' '  The  lamentable  incidents  of  the  resist- 
ance of  the  population  to  a  measure  of  internal  administration 
could  as  yet  only  be  regarded  from  a  humanitarian  view- 
point." The  "only"  is  here  significant.  (British  State  Pa- 
pers, Vol.  53,  p.  809.) 


112  INTERNATIONAL   POLICE 

of  Europe.  On  this  firm  foundation,  the  intervening 
governments  could  have  cooperated  to  secure  the  ends 
which  they  had  in  view.  All  the  subtle  and  specious 
exchange  of  arguments  could  have  been  brushed  aside, 
and  Russia  by  her  acts  would  have  stood  forth  as  a 
transgressor  of  the  law  of  nations  until  such  time  as 
she  was  ready  to  conform  to  that  law  by  granting  the 
Poles  a  reasonable  autonomy  and  recognition  of  their 
national  aspirations. 

Even  although  the  intervening  governments  were  un- 
mindful of  the  true  justification  of  their  intervention, 
the  statesmen  directing  the  affairs  of  the  intervening 
states  seem  to  have  felt  out  the  law  which  they  did  not 
understand.  By  their  acts  they  were  carrying  out  un- 
wittingly what  we  must  consider  to  be  clearly  an  in- 
stance of  intervention  on  the  ground  of  humanity. 
Gropingly  and  in  a  blundering  fashion  the  cooperating 
powers  felt  their  way  along  the  right  path.  In  their 
notes  amidst  irrelevant  and  extraneous  verbiage  we 
find  embedded  the  arguments  necessary  to  justify  their 
action  upon  humanitarian  grounds. 

To  make  this  clear  and  to  state  more  precisely  the 
grounds  of  the  action  taken,  we  need  only  to  reproduce 
a  few  extracts  selected  from  the  various  notes  of  pro- 
test. 

The  repeated  reference  to  humanitarian  considera- 
tions which  we  find  in  the  representations  of  the  cooper- 
ating powers  were  not  confined  to  any  one  of  the  classes 
of  acts  which  may  be  considered  to  justify  humanitari- 
an intervention,  but  the  principal  aim  of  their  action 
was  to  prevent  the  oppression  of  the  Poles  through  the 
abusive  denial  to  them  of  a  reasonable  degree  of  au- 
tonomy and  the  right  to  the  retention  of  their  language 
and  racial  or  religious  institutions.80 

"^PROLONGED  DISTURBANCES:  In  addition  to  pro- 
tests against  the  oppression  of  the  Poles,  the  intervening 


OPPRESSION  113 

As  a  fitting  conclusion  to  this  examination  we  can  do 
no  better  than  to  reproduce  the  attempts  to  formulate 
and  define  the  nature  of  Russia's  obligation  to  refrain 
from  the  oppression  of  her  Polish  subjects : 

states  justified  their  action  upon  the  ground  of  the  recurrence 
and  prolongation  of  disturbances  in  Poland : 

The  French  note  of  April  contained  the  following:  "The 
characteristic  of  the  agitation  in  Poland,  M.  le  Due,  that 
which  makes  their  exceptional  gravity,  is  that  they  are  not 
the  result  of  a  passing  crisis.  Effects  which  are  reproduced 
in  almost  every  generation  cannot  be  attributed  to  purely  ac- 
cidental causes.  These  convulsions,  which  have  become  peri- 
odical, are  the  symptom  of  an  inveterate  evil ;  they  bear  witness 
to  the  impotence  of  the  combinations  which  have  been  hitherto 
devised  in  order  to  reconcile  the  kingdom  of  Poland  with  the 
situation  which  has  been  created  for  it."  (British  State  Pa- 
pers, Vol.  53,  p.  862 ;  Translation  in  Parliamentary  Papers, 
Vol.  75,  Poland  [3150]  No.  136.) 

The  British  note  presented  at  the  same  time  declared :  ' '  The 
disturbances  which  are  perpetually  breaking  out  among  the 
Polish  subjects  of  His  Imperial  Majesty  necessarily  produce 
a  serious  agitation  of  opinion  in  other  countries  of  Europe, 
tending  to  excite  much  anxietj7  in  the  minds  of  their  Govern- 
ments, and  which  might,  under  possible  circumstances,  pro- 
duce complications  of  the  most  serious  nature."  (Ibid,  p. 
865.) 

In  the  previous  British  note  of  March  2nd,  we  find :  ' '  Since 
1832,  however,  a  state  of  uneasiness  and  discontent  has  been 
succeeded  from  time  to  time  by  violent  commotion  and  a  use- 
less effusion  of  blood."  (Ibid,  p.  806.) 

ANARCHY :  Still  another  ground  of  justification  was  the 
anarchy  in  Poland  and  the  violations  of  the  rules  of  civilized 
warfare. 

This  ground  was  taken  by  Earl  Russell  in  his  conversation 
with  Baron  Brunnow,  the  Russian  Ambassador.  "In  a  former 
conversation,"  writes  Earl  Russell  in  his  dispatch  of  April 
10,  "I  had  said  to  him  that  I  could  not  be  surprised  that  men 
driven  to  despair  should  commit  wild  deeds  of  revenge,  or 
that  the  ferocious  disciples  of  Mazzini  should  be  guilty  of  as- 
sassinations;  but  that  the  acts  of  atrocity  committed  by  the 
disciplined  army  of  Russia  excited,  on  the  part  of  Her 
Majesty's  Government,  surprise  as  well  as  horror.  Baron 
Brunnow  had  replied  that  dreadful  crimes  of  savage  cruelty 
had  been  perpetrated  by  the  insurgents,  and  had  given  rise  to 
8 


114  INTERNATIONAL   POLICE 

The  first  document  is  Article  I  of  the  Final  Act  of 
the  Congress  of  Vienna  (see  above,  p.  91)  in  which  the 
Poles  were  promised  a  constitutional  union  with  Russia 
and  a  "distinct  administration."  The  Poles  were 

acts  of  retaliation.  He  informed  me  yesterday  that  General 
Berg  would  take  command  of  the  Russian  army  in  Poland.  He 
said  that  General  Berg  was  an  able  commander,  and  was  likely 
by  his  military  arrangements  to  put  an  end  to  the  insurrection. 
I  replied  that  if  General  Berg  was,  as  I  believed,  an  officer  of 
high  repute,  I  hoped  he  would  restore  discipline  in  the  Russian 
army  in  Poland,  and  punish  those  acts  of  insubordination  and 
barbarous  violence,  which  had  hitherto  been  unrestrained. 
Baron  Brunnow  denied  the  truth  of  the  stories  in  circulation 
upon  this  subject.  (British  State  Papers,  vol.  53,  p.  866.) 

We  quote  another  passage  from  the  same  dispatch  in  which 
Earl  Russell  relates  how  he  qualified  the  assurances  which  he 
had  just  given  Baron  Brunnow  as  to  the  pacific  nature  of  the 
communication  about  to  be  made  to  Russia: 

"But  the  state  of  things  might  change.  The  present  over- 
ture of  Her  Majesty's  Government  might  be  rejected  as  the 
representations  of  the  2nd  of  March  had  been  rejected  by  the 
Imperial  Government.  The  insurrection  in  Poland  might 
continue  and  might  assume  larger  proportions;  the  atroci- 
ties on  both  sides  might  be  aggravated  and  extended  to  a  wider 
range  of  country.  If  in  such  a  state  of  affairs  the  Emperor 
of  Russia  were  to  take  no  steps  of  a  conciliatory  nature,  dangers 
and  complications  might  arise  not  at  present  in  contempla- 
tion." (British  State  Papers,  Vol.  53,  p.  866-7.) 

The  Spanish  Government  in  their  appeal  to  Russia  ' '  to  pur- 
sue a  conciliatory  and  merciful  course"  cited  their  own  ex- 
perience of  civil  wars,  and  remarked  "that  popular  discon- 
tents cannot  be  suppressed  by  severity  alone."  (British  State 
Papers,  Vol.  53,  p.  874.) 

From  Vienna  Lord  Bloomfield  reported:  "Much  has  been 
said  of  the  want  of  discipline  amongst  the  Russian  troops 
in  Poland,  and  to  the  almost  total  disregard  of  the  authority 
of  the  officers  are  attributed  most  of  the  frightful  massacres 
that  are  each  day  reported  in  the  newspapers."  (British 
State  Papers,  Vol.  53,  p.  841.)  In  the  same  report  Lord 
Bloomfield  inclosed  a  translation  from  the  Fremden  Blatt 
giving  details  of  these  atrocities.  (Ibid,  p.  840-842.) 

Lord  Palmerston's  instructions  of  November  23,  1831,  to 
Lord  Heytesbury  contained  the  following  criticism  of  methods 
employed  by  Russia  in  suppressing  the  insurrection  of  1831-2 : 


OPPRESSION  115 

further  promised  "Representation  and  national  in- 
stitutions "  which  were,  it  is  true,  by  the  terms  of  the 
Act  to  be  "  regulated  according  to  the  degree  of  politi- 
cal consideration  that  each  of  the  governments  to  which 
they  belong  shall  judge  expedient  and  proper  to  grant 
them."51 


' '  From  the  submission  of  the  Poles  to  the  arms  of  His  Im- 
perial Majesty,  Europe  looks  for  the  reestablishment  of  law 
and  justice,  and  not  for  acts  of  retaliation  and  vengeance; 
since  whatever  excuse  such  acts  may  find  in  the  troubles  of  an 
intestine  war,  they  could  not  be  palliated  if  resorted  to  by  a 
power  which  has  subdued  all  opposition,  and  which  cannot 
plead  for  its  measures  the  necessity  of  any  pressing  emer- 
gency." (British  State  Papers,  Vol.  37,  p.  1428.) 

Secretary  Seward  wrote  to  Mr.  Motley,  July  14, 1863 :  ' '  The 
European  states  suffer  long  and  forbear  much  with  a  nation 
that  falls  under  the  affliction  of  civil  war,  if  it  be  only  near 
home.  They  are  very  intolerant  of  a  nation,  on  this  continent, 
that  suffers  its  domestic  wrangles  to  break  the  peace  of  the 
world."  (Diplomatic  Correspondence,  1863,  Part  II,  p.  926.) 

HUMANITY :  In  certain  passages  of  the  diplomatic  corre- 
spondence we  find  allusions  to  humanity  as  the  justification 
for  the  representations  without  any  specifications  as  to  the 
particular  action  considered  to  violate  the  principles  of  hu- 
manity. (See  British  State  Papers,  Vol.  37,  p.  1426;  Ibid, 
Vol.  53,  p.  813.) 

51In  his  note  of  August  11,  Earl  Russell  wrote:  "The  Em- 
press Catherine  in  1772  promised  to  the  Poles  the  maintenance 
of  their  religion.  The  Emperor  Alexander  I  in  1815  prom- 
ised to  the  Poles  national  representation  and  national  adminis- 
tration. 

"These  promises  have  not  been  fulfilled.  During  many 
years  the  religion  of  the  Poles  was  attacked,  and  to  the  pres- 
ent hour  they  are  not  in  possession  of  the  political  rights  as- 
sured to  them  by  the  Treaty  of  1815  and  the  constitution  of  the 
same  year."  (British  State  Papers,  Vol.  53,  p.  913.) 

Discussing  Russia 's  obligation  under  Article  I  with  especial 
reference  to  the  terms  "representation"  and  "national  insti- 
tutions," Prince  Gortchakoff  in  a  conversation  reported  by 
Lord  Napier  remarked  "  . .  .that  under  this  Article  the  Rus- 
sian Government  remained  the  absolute  arbiter  of  the  form  in 
which  the  representation  and  national  institutions  of  Poland 
should  be  framed.  The  Emperor  Alexander  I,  using  his  in- 
disputable prerogative  in  a  liberal  and  even  in  an  enthusiastic 


116  INTERNATIONAL   POLICE 

The  overt  acts  by  which  Russia  oppressed  the  Poles 
were  well  described  by  Lord  Palmerston  in  a  dispatch 
to  Lord  Durham,  July  3,  1832 : 

"The  Treaties  of  1815,  to  which  Russia  was  a  party 
(not  only  the  General  Act  of  Congress  of  Vienna,  but 
the  separate  Treaty  between  Russia  and  Prussia), 
clearly  stipulate  that  the  nationality  of  the  Poles  shall 


sense,  had,  some  time  after  the  conclusion  of  the  Treaty  re- 
ferred to,  spontaneously  granted  to  the  Kingdom  of  Poland  a 
Representative  Constitution  which  had  not  proved  consistent 
with  the  peace  and  welfare  either  of  Poland  or  Russia.  That 
Constitution  had  never  been  imparted  to  foreign  Powers  as 
involving  the  execution  of  international  engagements.  We  all 
know  under  what  circumstances  it  had  perished.  What  the 
Emperor  Alexander  did  in  the  plenitude  of  his  power,  his 
successor  in  the  exercise  of  the  same  power  could  revoke.  The 
present  Emperor,  ever  faithful  to  the  principles  of  govern- 
ment which  he  applied  in  Russia,  had  applied  these  principles 
in  Poland  too,  and  perhaps  in  a  larger  measure  than  had  been 
granted  in  any  other  portion  of  his  dominions.  The  political 
Constitution  proclaimed  in  Poland  in  the  year  1861  embodied 
a  complete  autonomy, — national  institutions  with  a  modified 
representation  adapted  to  the  form  of  political  existence  in 
force  under  the  Imperial  Government.  Poland  was  now  ruled 
by  institutions  purely  Polish.  There  was  a  directing  Minister, 
a  Pole,  entertaining  national  sentiments  of  the  most  decided 
character;  a  Council  of  Administration  composed  of  Poles; 
a  Council  of  State  containing  Poles  taken  from  the  several 
ecclesiastical  and  civil  orders  of  the  community,  and  embody- 
ing some  representative  elements,  in  which  general  laws  for  the 
welfare  of  the  Kingdom  were  elaborated;  there  were  pro- 
vincial, district,  and  municipal  councils  in  descending  order, 
all  purely  elective,  charged  with  the  local  and  material  inter- 
ests of  the  country.  This  national  representation  was  not  cast 
in  the  same  mould  as  that  which  was  designed  by  the  Em- 
peror Alexander,  or  that  which  existed  in  England,  but  it 
formed,  nevertheless,  a  system  of  national  and  representative 
institutions  adapted  to  the  condition  of  Poland  and  its  rela- 
tions with  Russia.  Her  Majesty's  Government,  composed  of 
practical  statesmen,  the  representatives  of  a  practical  nation, 
would  not  surely  contend  that  there  was  only  one  valid  and 
useful  form  of  political  institutions  equally  applicable  to  all 
countries,  that,  namely,  which  existed  in  England,  and  which 


OPPEESSION  117 

be  preserved.  But  statements  have  reached  His  Maj- 
esty's Government  which,  if  true,  tend  to  show  a  de- 
liberate intention  on  the  part  of  the  Russian  Govern- 
ment to  break  down  the  nationality  of  Poland,  and  to 
deprive  it  of  everything  which,  either  in  outward  form 
or  in  real  substance,  gives  to  its  people  the  character 
of  a  separate  nation. 

' '  The  abolition  of  the  Polish  colors ;  the  introduction 
of  the  Russian  language  into  public  acts ;  the  removal 
to  Russia  of  the  national  library,  and  public  collections 
containing  bequests  made  by  individuals  upon  specific 
condition  that  they  never  should  be  taken  out  of  the 
Kingdom  of  Poland;  the  suppression  of  schools  and 
other  establishments  for  public  instruction;  the  re- 
moval of  a  great  number  of  children  to  Russia  on  the 
pretence  of  educating  them  at  the  public  expense ;  the 
transportation  of  whole  families  to  the  interior  of 
Russia;  the  extent  and  severity  of  the  military  con- 
scription; the  large  introduction  of  Russians  into  the 

was  successful  there.  Nor  would  Her  Majesty's  Government, 
which  professed  non-intervention  as  the  rule  of  their  foreign 
policy,  deviate  from  that  principle  now  by  interfering  in  the 
domestic  concerns  of  another  State.  The  Kingdom  of  Poland 
enjoyed  an  absolute  administrative  independence.  Even  the 
Department  for  Polish  Affairs  in  the  Russian  capital  had  been 
abolished.  The  only  institution  common  to  the  two  countries 
now  was  the  army.  The  new  institutions  granted  to  Poland, 
alluded  to  above,  opened  a  wide  field  of  activity  and  material 
prosperity  to  the  country.  But  this  was  not  all.  The  Imperial 
Government,  in  restoring  the  educational  establishments  of  the 
Kingdom,  had  offered  to  the  people  the  resources  of  intellec- 
tual culture  and  satisfaction.  If  to  these  institutions  we  added 
the  guarantee  by  which  they  were  all  preserved,  the  personal 
character  of  the  Emperor,  who  cherished  an  equal  solicitude 
for  the  good  of  all  his  subjects,  we  should  have  a  sufficient 
security  for  the  future  welfare  of  Poland,  though  the  scheme 
might  exclude  the  peculiar  form  of  Representative  Government 
applied  in  Great  Britain,  and  perhaps  exclusively  appropri- 
ate to  its  condition."  (British  State  Papers,  vol.  53,  p.  834-5.) 


118  INTERNATIONAL   POLICE 

^•-•*PP 

public  employments  in  Poland;  the  interference  with 
the  National  Church ;  all  these  appear  to  be  symptoms 
of  a  deliberate  intention  to  obliterate  the  political 
nationality  of  Poland,  and  gradually  to  convert  it  into 
a  Russian  province."  (British  State  Papers,  vol.  37, 
p.  1440.) 

In  response  to  Prince  Gortchakoff 's  intimation  that 
Russia  was  '  *  ready  to  enter  upon  an  exchange  of  ideas 
upon  the  ground  and  within  the  limits  of  the  Treaty 
of  1815,"  Earl  Russell  before  making  any  definite 
proposals  found  it  "essential"  so  he  said  to  point  out 
that  there  were  "two  leading  principles  upon  which," 
as  it  appeared  to  the  British  Government,  "any  future 
government  of  Poland  ought  to  rest"  (British  State 
Papers,  Vol.  53,  p.  898). 

Earl  Russell  states  the  first  of  these  to  be:  "  . .  .the 
establishment  of  confidence  in  the  government  on  the 
part  of  the  governed"  (Ibid,  p.  898).  Earl  Russell 
then  referred  to  the  views  of  Alexander  I  relative  to 
Poland  and  laid  particular  emphasis  upon  the  expres- 
sion " . .  with  a  national  administration  congenial  to 
the  sentiments  of  the  people, ' '  which  the  Tsar  had  used 
in  describing  his  plan  for  erecting  the  Duchy  of  War- 
saw ' '  together  with  the  Polish  provinces  formerly  dis- 
membered into  a  kingdom  under  the  dominion  of  Rus- 
sia" (British  State  Papers,  Vol.  53,  p.  898). 

"The  next  [second]  principle  of  order  and  stabili- 
ty," Earl  Russell  considered  to  be:  "  . .  .the  suprem- 
acy of  law  over  arbitrary  will"  (Ibid,  p.  899).  Con- 
tinuing, Earl  Russell  said:  "Where  such  supremacy 
exists,  the  subject  or  citizen  may  enjoy  his  property  or 
exercise  his  industry  in  peace,  and  the  security  he  feels 
as  an  individual  will  be  felt  in  its  turn  by  the  govern- 
ment under  which  he  lives. 


OPPRESSION  119 

"  Partial  tumults,  secret  conspiracies,  and  the  inter- 
ference of  cosmopolite  strangers  will  not  shake  the 
firm  edifice  of  such  a  government52.  (Ibid,  p.  899.) 

Under  the  circumstances  then  existing  Earl  Russell 
stated  that  it  appeared  to  his  government  that  ''noth- 
ing less  than  the  following  outline  of  measures  should 
be  adopted  as  the  basis  of  pacification. 

' '  1.  Complete  and  general  amnesty. 

*  *  2.  National  representation,  with  powers  similar  to 
those  which  are  fixed  by  the  Charter  of  the  15th-27th 
November,  1815. 

"3.  Poles  to  be  named  to  public  offices  in  such  a 
manner  as  to  form  a  distinct  national  Administration, 
having  the  confidence  of  the  country. 

"4.  Full  and  entire  liberty  of  conscience;  repeal  of 
the  restrictions  imposed  on  Catholic  worship. 

52This  statement  of  Earl  Russell  does  not  seem  quite  in  har- 
mony with  his  frank  admission  to  the  Austrian  Ambassador, 
Count  Apponyi,  that  it  might  be  necessary  ultimately  to  re- 
store the  independence  of  Poland  (British  State  Papers,  Vol. 
53,  p.  831;  cf.  similar  statement  by  Gortchakoff,  ibid,  p.  833). 
In  the  course  of  this  same  conversation  as  reported  by  Earl 
Russell  himself  he  also  outlined  his  ideas  as  to  what  was  nec- 
essary to  pacify  Poland  as  follows:  "Russia  could  only  gov- 
ern Poland  in  one  of  two  ways.  The  one  was  that  of  the  Em- 
peror Nicholas,  that  of  keeping  her  submissive  and  degraded ; 
extinguishing  her  language ;  compelling  her  by  force  to  change 
her  religion.  This  mode  was  repugnant  to  all  received  notions 
of  justice  and  clemency. 

' '  The  other  was  the  mode  of  Alexander  I :  protecting  her 
from  the  hatred  and  revenge  of  the  Russians,  by  giving  her 
the  guarantee  of  popular  institutions  and  a  local  administra- 
tion entirely  separate  from  that  of  Russia. 

"Nothing  less  would  suffice.  The  late  conscription  was  a 
proof  of  it.  The  law  of  recruitment  of  1859  was  a  fair  and  just 
law;  but  it  was  wanting  in  some  formality,  and  when  it 
suited  the  despotism  of  Russia  to  substitute  an  arbitrary,  un- 
just, and  cruel  measure  for  the  equal  law  which  had  been  pro- 
claimed, there  was  not  a  moment's  hesitation  in  doing  so.  I 
conceived  there  was  no  middle  line  between  a  system  of  oppres- 
sion and  a  system  of  free  and  just  government."  (British 
State  Papers,  Vol.  53,  p.  831,  Cf.  ibid,  p.  865,  874.) 


120  INTERNATIONAL   POLICE 

"5.  The  Polish  language  recognized  in  the  Kingdom 
as  the  official  language,  and  used  as  such  in  the  admin- 
istration of  the  law  and  in  education. 

"6.  The  establishment  of  a  regular  and  legal  system 
of  recruiting. 

"These  6  points  might,"  Earl  Russell  added,  "serve 
as  the  indications  of  measures  to  be  adopted,  after 
calm  and  full  deliberation. 

"But  it  is  difficult,  nay,  almost  impossible,  to  create 
the  requisite  confidence  and  calm  while  the  passions  of 
men  are  becoming  daily  more  excited,  their  hatreds 
more  deadly,  their  determination  to  succeed  or  perish 
more  fixed  and  immovable"  (British  State  Papers, 
vol.53,  p.  899-900). 

The  British  Government  speaking  through  Viscount 
Castlereagh,  Viscount  Palmerston  and  Earl  Russell 
defined  the  limitations  which  international  law  placed 
upon  Russia  to  prevent  the  oppression  of  her  Polish 
subjects  and  to  assure  to  them  a  reasonable  recogni- 
tion of  their  national  institutions  and  aspirations. 

In  so  far  as  these  limitations  to  prevent  that  abusive 
use  of  power  which  we  call  oppression  were  correctly 
stated  they  will  apply  to  and  will  limit  the  action  of 
any  empire  over  the  alien  races  and  peoples  held  under 
its  paramount  authority. 

It  is  natural  to  apply  them  now  to  Ireland  and  to  see 
in  how  far  Great  Britain  has  herself  observed  the  rules 
which  she  proposed  in  the  case  of  Poland. 

The  United  States,  in  1898,  intervened  in  Cuba  on 
the  ground  of  humanity  to  put  an  end  to  the  shocking 
treatment  which  the  military  authorities  were  inflict- 
ing upon  the  non-combatant  population  in  their  futile 
efforts  to  suppress  the  insurrection.53  This  humani- 
tarian intervention  was  undertaken  in  response  to  the 

63"And,  thirdly,  there  is  the  argument  based  upon  the 
claims  of  humanity.    So  long  as  the  rules  of  civilized  warfare 


OPPRESSION  121 

widespread  feeling  that  the  stubborn  and  prolonged 
resistance  of  the  Cubans  justified  their  claim  to  a  larger 
measure  of  independence  than  Spain  seemed  willing  to 


were  observed,  so  long,  that  is,  as  the  non-combatant  popula- 
tion was  not  interfered  with,  there  was  little  choice  between 
the  two  parties.  Occasional  atrocities  might  be  committed 
by  either  side,  but  neither  side  was  so  conspicuous  a  sinner  as 
to  warrant  outside  interference.  The  Cubans  at  least  held 
their  own.  But  there  came  a  change  of  policy.  The  non-com- 
batant country  population  was  forced  to  settle  within  the 
range  of  the  guns  of  the  Spanish  intrenched  in  the  towns,  and 
there,  destitute  of  food,  or  of  the  means  of  growing  or  getting 
food,  it  starved."  (T.  S.  Woolsey,  America's  Foreign  Policy, 
p.  63-4;  see  also  Moore's  Digest,  VII :  212  f.) 

The  correspondence  relative  to  the  treatment  of  the  Cuban 
insurrectionists  during  the  long  struggle  of  1868-1878  touches 
upon  the  same  question  of  humanitarian  intervention.  Secre- 
tary Fish  even  went  so  far  as  to  take  the  initial  steps  look- 
ing toward  a  collective  action  by  the  powers.  See  Secretary 
Fish's  dispatch  No.  266  to  Mr.  Gushing,  1875,  printed  by 
Chadwick  (Diplomatic  Relations  with  Spain,  p.  375).  Cap- 
tain Mahan  says  of  the  action  of  the  United  States  in  1898 : 
"...when  we  ourselves  last  year,  rejected  intermediation, 
loosed  the  bonds  from  Cuba,  and  lifted  the  yoke  from  the  neck 
of  the  oppressed."  (Some  Neglected  Aspects  of  War,  p.  44; 
cf.  ibid,  p.  74-5.) 

In  a  campaign  speech  (August  28,  1920),  President — then 
Senator — Harding,  quoting  from  his  speech  in  the  Senate 
(April  4, 1917),  said  of  American  intervention  in  Cuba :  "We 
unsheathed  the  sword  some  eighteen  years  ago  for  the  first 
time  in  the  history  of  the  world  in  the  name  of  humanity,  and 
we  gave  proof  to  the  world  at  that  time  of  an  unselfish  nation. ' ' 
(Reported  in  the  N.  Y.  Sun,  August  29,  1920.)  Mr.  Harding 
was  probably  referring  to  the  extraordinary  disinterestedness 
of  our  action  when  he  called  this  humanitarian  intervention 
the  first  instance  in  the  history  of  the  world,  for  certainly  he 
must  have  been  aware  of  the  many  other  instances  of  humani- 
tarian intervention  which  have  occurred. 

This  intervention  has  sometimes  been  classed — erroneously 
I  believe — as  an  instance  of  self-help  for  the  purpose  of  re- 
moving an  international  nuisance.  We  have  already  entered 
into  a  discussion  of  this  theory,  see  above  §  8. 


122  INTERNATIONAL   POLICE 

accord.54  The  United  States  had  other  grounds  for 
intervening,  as  will  generally  be  found  to  be  the  case 
in  instances  of  intervention  for  humanity.65 

The  most  recent  case  in  which  a  popular  appeal  for 
intervention  on  the  ground  of  humanity  to  prevent 
what  is  alleged  to  be  the  ruthless  suppression  of  rea- 
sonable nationalistic  aspirations  is  that  of  Ireland. 
The  student  will  find  it  interesting  to  apply  the  lan- 
guage of  the  intervening  powers  in  Poland  in  1863  to 
the  case  of  Ireland  in  1921.  There  have  been  undoubted 


"...  it  is  probable  that  endless  negotiation  would  never 
have  brought  Sagasta  and  the  Queen  Regent  to  an  admission 
of  Cuban  independence."  (T.  S.  Woolsey:  America's  For- 
eign Policy,  p.  83.) 

65"  These  are  the  three  justifying  reasons,  then,  for  inter- 
vention— for  the  attempt  by  national  action,  to  heal  this  open 
sore :  the  burden  of  neutrality ;  the  dictates  of  our  commer- 
cial interests;  the  call  of  humanity.  Any  one  of  these  is 
strong;  together  they  are  very  nearly  convincing."  (T.  S. 
Woolsey,  America's  Foreign  Policy,  p.  64-5.) 

The  Joint  Resolution  of  Congress  approved  April  20,  1898, 
justified  the  American  intervention  in  the  following  words : 

"Whereas  the  abhorrent  conditions  which  have  existed  for 
more  than  three  years  in  the  island  of  Cuba,  so  near  our  own 
borders,  have  shocked  the  moral  sense  of  the  people  of  the 
United  States,  have  been  a  disgrace  to  civilization,  culminating 
as  they  have  in  the  destruction  of  a  United  States  battleship, 
with  two  hundred  and  sixty-six  of  its  officers  and  crew,  while 
on  a  friendly  visit  in  the  harbor  of  Havana,  and  cannot  longer 
be  endured . . . .  " 

It  is  further  to  be  noted  that  this  same  resolution,  instead 
of  referring  to  the  rights  of  the  United  States  to  redress,  pro- 
ceeds, after  the  recognition  of  the  independence  of  Cuba,  to 
declare,  "Second,  that  it  is  the  duty  of  the  United  States  to 
demand  and  the  Government  of  the  United  States  hereby  de- 
mand, that  the  Government  of  Spain  at  once  relinquish  its 
authority  and  government  of  the  island  of  Cuba,  and  with- 
draw its  land  and  naval  forces  from  Cuba  and  Cuban  waters. ' ' 

The  diplomatic  correspondence  exchanged  between  the  two 
governments  shows  clearly  that  the  motive  of  humanity  was 
never  lost  from  view,  although  it  is  true  that  the  United  States 
repeatedly  referred  to  its  own  interests  as  a  justification  for 
the  numerous  protests  which  it  presented  to  the  Spanish  Gov- 
ernment. 


OPPRESSION  123 

injustices  and  abuses  of  force  to  record  in  the  long  and 
miserable  history  of  British  rule  in  Ireland.  There 
have  been  periodic  outbreaks  and  insurrections,  and 
usually  there  have  been  acts  of  reprisal  and  barbarity 
on  both  sides,  so  that  we  may  fairly  say  that  the  pre- 
sumption that  Great  Britain  has  treated  Ireland  with 
due  consideration  is  shaken  to  such  a  degree  as  to  per- 
mit other  states  to  examine  the  question  whether  it  is 
not  incumbent  upon  them  to  intervene.  To  answer  this 
query  it  will  be  necessary  to  decide  whether  the  fault 
lies  with  Great  Britain  for  the  continuance  of  an  un- 
just treatment  or  for  the  failure  to  act  with  sufficient 
promptness  in  according  necessary  reforms.56 

The  Irish  element  in  the  United  States  and  their 
sympathizers,  including  of  course  all  the  strongly  anti- 
British  groups,  have  brought  to  bear  upon  the  govern- 
ment a  powerful  influence  for  intervention,  but  it  would 
appear  that  they  have  met  with  no  success  beyond  the 
adoption  of  resolutions  in  Congress.  At  the  time  of  the 
discussion  of  the  ratification  of  the  Versailles  Peace 
Treaty  with  Germany,  the  following  reservation  (No. 


56The  answer  to  this  question  will  vary  with  the  examiner 's 
prejudices.  Perhaps  an  unbiased  observer  would  find  that 
the  British  Government  has  been  generous  and  expeditious  in 
reforms  and  projects  for  granting  the  fullest  possible  measure 
of  autonomy  to  the  Irish.  We  have  to  remember  that  Eng- 
land's national  security  requires  that  she  should  prevent  Ire- 
land 's  serving  as  a  fulcrum  for  the  lever  of  any  hostile  power. 
Furthermore,  the  principles  of  justice  repel  the  idea  that  the 
less  numerous  but  more  thrifty  and  prosperous  Protestants 
should  be  handed  over  to  the  control  of  the  Catholic  majority. 
There  is  another  consideration,  which  is  the  determination  of  in 
how  far  Irish  support  of  Great  Britain's  enemies  in  the  last 
war  should  give  her  reason  to  pause  in  granting  larger  oppor- 
tunities for  mischief  in  the  event  of  another  war.  It  is  doubt- 
ful, if  Ulster  were  not  given  over,  whether  the  Irish  would  be 
satisfied  with  any  measure  short  of  absolute  independence,  and 
an  independence  of  which  they  should  have  all  the  advantages 
and  none  of  the  burdens. 


124  INTERNATIONAL   POLICE 

15)  was  amongst  those  adopted:  "In  consenting  to 
the  ratification  of  the  Treaty  with  Germany  the  United 
States  adheres  to  the  principle  of  self-determination 
and  to  the  resolution  of  sympathy  with  the  aspirations 
of  the  Irish  people  for  a  government  of  their  own  choice 
adopted  by  the  Senate  June  6,  1919,  and  declares  that 
when  such  government  is  attained  by  Ireland,  a  con- 
summation it  is  hoped  is  at  hand,  it  should  promptly 
be  admitted  as  a  member  of  the  League  of  Nations."57 

We  shall  discuss  the  justification  of  such  action  more 
fully  when  we  consider  the  limits  which  the  principle  of 
non-interference  imposes  (see  below,  §  13.) 

Sir  Edward  S.  Creasy  has  formulated  the  ground 
of  justification  for  intervention  in  favor  of  self-de- 
termination : 

"Where  we  intervene  in  behalf  of  a  grievously  op- 
pressed people,  which  has  never  amalgamated  with  its 
oppressors  as  one  nation,  and  which  its  oppressors 
have  systematically  treated  as  a  alien  race,  subject  to 
the  same  imperial  authority,  but  in  other  respects  dis- 
tinct, the  distinction  being  the  distinction  between  the 
privileged  and  burdened,  between  honored  and  de- 
graded, between  fully  protected  and  ill  protected  by 
law  in  primordial  rights  of  security  for  person  and 

57  The  above  resolution  was  offered  by  Senator  Gerry,  on 
March  18,  and  adopted  by  a  vote  of  38  yeas  to  36  nays,  and  it 
became  Reservation  No.  15  to  the  treaty.  An  attempt  by 
Senator  Thomas  to  add  to  the  reservation  a  declaration  of 
sympathy  with  Korea  was  rejected  by  a  vote  of  34  yeas  to 
36  nays.  A  motion  by  Senator  Lodge  to  amend  it  by  omitting 
the  clause  declaring  the  adherence  of  the  United  States  to  the 
principle  of  self-determination  was  rejected  by  a  vote  of  37 
yeas  to  42  nays,  and  upon  being  later  moved  in  the  Senate 
by  Mr.  Calder  the  same  motion  was  laid  on  the  table  by  a  vote 
of  51  to  30.  Senator  Sterling  attempted  in  the  Senate  to 
strike  from  the  reservation  the  words  "a  consummation  it  is 
hoped  is  at  hand ' '  but  the  attempt  failed  by  a  vote  of  70  to 
11."  (Note  by  George  A.  Finch:  International  Conciliation 
pamphlets  No.  153,  p.  407-8.) 


UNCIVILIZED  WAEFARE  125 

property — and  the  distinction  being  hereditary,  per- 
manent, and  practical. 

''And  even  when  a  case  appears  to  fall  within  this 
third  class  of  exceptions,  we  must  scrutinize  it  very 
carefully,  before  we  admit  it  to  that  character;  and 
great  care  must  be  taken  lest  there  be  a  violation  of  the 
principles  of  rights  of  property,  of  dominion,  or  of 
Empire,  whether  acquired  by  compact  or  by  prescrip- 
tion..." 

*  *  Before  we  approve  of  Intervention  in  behalf  of  an 
oppressed  subject  race,  it  ought  to  be  clear  that  the 
non-amalgamation  of  the  two  races  has  been  due  en- 
tirely to  the  haughty  injustice  of  the  dominant  race, 
and  that  no  fair  hope  of  equal  laws  and  equal  franchises 
has  been  held  out  to  the  subjugated  and  down-trodden 
nation.  Unless  these  limitations  to  the  exception  are 
strictly  attended  to,  interventions  in  behalf  of  what  it 
is  now  common  to  term  oppressed  nationalities  are 
likely  to  prove  the  sources  of  as  much  unjust  war  and 
misery  to  mankind,  as  have  ever  been  brought  about  by 
interventions  in  behalf  of  what  used  to  be  termed  the 
right  divine  of  kings,  and  of  the  sacred  cause  of  legiti- 
mate government."  (E.  S.  Creasy:  First  Platform  of 
International  Law,  p.  303-4.) 

It  will  be  noticed  from  the  context  that  Creasy  im- 
plies that  intervention  would  only  be  justifiable  when 
undertaken  to  help  an  oppressed  race  to  resist  new  acts 
of  tyranny  and  encroachments  upon  its  rights,  but  no 
state  would  be  justified  in  inciting  a  subject  people  to 
revolt  against  existing  wrongs  or  inveterate  abuses. 

§  8(c).    UNCIVILIZED  WARFARE 

We  have  already  seen  that  violations  of  the  laws  of 
war,  in  a  conflict  between  nations  are,  when  sufficiently 
serious  or  numerous,  a  just  ground  for  the  intervention 


126  INTERNATIONAL   POLICE 

of  third  states.  In  the  case  of  civil  wars  or  insurrec- 
tions, similar  violations  have  frequently  led  to  inter- 
vention on  the  ground  of  humanity.  Even  Hall  (4  ed., 
§  92,  p.  303),  who  is  so  severe  a  critic  of  humanitarian 
intervention,  seems  to  admit  internecine  war  as  a  cause 
which  would  be  an  exception  to  the  general  rule  that 
"a  state  must  be  allowed  to  work  out  its  internal 
changes  in  its  own  fashion." 

Sheldon  Amos,  speaking  of  insurrection,  says: 
"Gross  acts  of  inhumanity  persisted  in  on  either  side 
may,  on  grounds  of  humanity,  properly  precipitate  in- 
tervention." (Amos:  Political  and  Legal  Remedies 
for  War,  1880,  p.  158.  See  also  Heffter,  Europaeisches 
Voelkerrecht,  §  46.) 

The  collective  intervention  of  England,  France  and 
Russia  to  put  a  stop  to  the  long  civil  war  in  Greece 
(1827)  was  timed  to  prevent  the  complete  sub- 
jugation of  the  Greek  people,  and  for  that  reason 
the  motive  of  the  intervention  would  seem  to  have  been 
to  protect  the  rights  of  self-determination,  rather  than 
to  put  an  end  to  the  conflict  and  the  uncivilized  methods 
by  which  it  was  conducted.58  But  it  has  usually  been 
classed  as  an  instance  of  humanitarian  intervention 
upon  this  latter  ground,  and  in  deference  to  the  many 


58The  case  of  Greece  is  precisely  similar  to  that  of  Belgium. 
Greece  never  achieved  a  de  facto  independence;  on  the  con- 
trary, at  the  moment  of  the  European  intervention,  the  Greek 
patriots  were  on  the  point  of  succumbing.  The  European 
Powers  did  not  recognize,  they  saved  Greece.  As  a  matter  of 
European  policy,  they  thought  fit  to  act  in  a  manner  decidedly 
hostile  towards  Turkey.  The  battle  of  Navarino  may  have 
been  an  'untoward  event,'  but  it  was  the  natural  and  almost 
inevitable  consequence  of  a  forcible  intervention  to  prevent  the 
Turkish  Government  from  reducing  its  subjects  to  submis- 
sion." (Historicus  [Sir  Vernon  Harcourt]  on  International 
Law,  1863,  p.  6.) 


UNCIVILIZED  WARFARE  127 

authorities  who  have  considered  it  as  such  we  will  so 
treat  it.59 

In  1875  and  1876,  Europe  was  deeply  stirred  by  a  re- 
currence in  Turkey  of  persecutions  and  outrages.  Mr. 
Morley  has  described  the  situation  as  follows :  * '  Fierce 
revolt  against  intolerable  misrule  slowly  blazed  up  in 
Bosnia  and  Herzegovina,  and  a  rising  in  Bulgaria,  not 
dangerous  in  itself,  was  put  down  by  Turkish  troops 
dispatched  for  the  purpose  from  Constantinople,  with 
deeds  described  by  the  British  agent  who  investigated 
them  on  the  spot,  as  the  most  heinous  crimes  that  had 
stained  the  history  of  the  century.  The  consuls  of 
France  and  Germany  at  Salonica  were  murdered  by 
the  Turkish  mob.  Servia  and  Montenegro  were  in 
arms.  Moved  by  these  symptoms  of  a  vast  confla- 


59Strauch  (Interventionslehre,  p.  277),  says  the  powers  in- 
tervened because  of  the  way  in  which  Ibrahim  Pasha  conduct- 
ed the  war. 

Oppenheim  says:  "Thus  Great  Britain,  France,  and  Rus- 
sia intervened  in  1827  in  the  struggle  between  revolutionary 
Greece  and  Turkey,  because  public  opinion  was  horrified  at 
the  cruelties  committed  during  this  struggle. "  (International 
Law,  Vol.  I,  p.  194 ;  cf .  also  Creasy :  First  Platform  of  Inter- 
national Law,  p.  300-301  and  notes.) 

Stapleton  expresses  a  similar  opinion :  "It  was  not  until 
the  mode  in  which  hostilities  were  conducted  by  the  Turkish 
general,  Ibrahim  Pacha,  became  at  variance  with  the  recog- 
nized rules  of  civilized  warfare,  so  as  to  give  every  European 
State  a  right  of  war  against  Turkey,  that  he  entertained  the 
idea  of  a  forcible  intervention.  It  was  evident  that  the  Pacha 
was  carrying  on  a  war  of  extermination — wherever  there  was 
the  slightest  resistence,  he  massacred  all  the  males,  and  sent 
the  women  and  children  into  slavery  in  Egypt.  He  was  labor- 
ing to  blot  out  of  existence  a  whole  Christian  people,  and  to 
establish  a  new  Barbary  State  on  the  shores  of  the  Mediter- 
ranean, in  the  very  midst  of  Europe.  Mr.  Canning  held  this 
to  be  a  casus  belli,  giving  all  nations  a  right  to  interfere  by 
force,  and  accordingly  he  consented  to  the  Greek  treaty,  which 
admitted  of  a  forcible  interference,  if  necessary  to  prevent  the 
consummation  of  this  atrocious  design."  (A.  G.  Stapleton: 
Intervention,  p.  32.) 


128  INTERNATIONAL   POLICE 

gration,  the  three  imperial  courts  of  Russia,  Austria, 
and  Germany  agreed  upon  an  instrument  imposing  on 
the  Turk  certain  reforms,  to  be  carried  out  under 
European  supervision.  To  this  instrument,  known  as 
the  Berlin  memorandum,  England,  along  with  France 
and  Italy,  was  invited  to  adhere  (May  13).  The  two 
other  Powers  assented,  but  Mr.  Disraeli  and  his  cabinet 
refused — a  proceeding  that,  along  with  more  positive 
acts,  was  taken  by  the  Turk  and  other  people  to  assure 
the  moral  support  of  Great  Britain  to  the  Ottoman,  and 
probably  to  threaten  military  support  against  the  Rus- 
sian. 

"This  rejection  of  the  Berlin  memorandum  in  May 
marked  the  first  decisive  moment  in  British  policy." 
(Morley :  Life  of  Gladstone,  Vol.  II,  p.  548-9.) 

The  atrocities  committed  by  the  Turks  stirred  the 
sympathy  of  the  people  in  all  parts  of  Europe.  In 
Russia  the  sentiment  for  intervention  was  especially 
strong  because  of  the  deep  religious  feeling  of  the 
masses  and  the  traditional  hatred  of  the  Turk.  Fur- 
thermore, the  Russian  Government  in  lending  its  sup- 
port might  with  reason  expect  to  secure  some  rights 
of  protection  over  the  Christian  population  of  Turkey 
— an  aim  it  had  long  cherished.  But  in  Great  Britain 
the  Disraeli  government  was  not  willing  to  see  Turkey 
in  any  danger  of  coming  under  the  control  of  Russia, 
and  Lord  Derby,  the  Secretary  of  State  for  Foreign 
Affairs,  turned  a  deaf  ear  to  all  appeals  for  coopera- 
tion to  organize  collective  intervention  on  the  ground 
of  humanity. 

The  governments  of  Russia,  Austria,  and  Germany 
tried  at  first  to  draw  up  a  plan  of  reform,  and  sub- 
mitted it  to  Great  Britain,  France,  and  Italy.  The  two 
latter  accepted,  but  Lord  Derby  hesitated  until  it  was 
found  that  the  Sultan  was  willing  to  accept  the  project 
(Andrassy  Note,  January  31,  1876).  Then  came  the 


UNCIVILIZED  WARFARE  129 

murders  of  the  French  and  German  Consuls  at  Salon- 
ica,  and  the  three  imperial  governments  agreed  upon 
the  Berlin  memorandum.  It  was  accepted  by  France 
and  Italy,  but  Lord  Derby  declined  and  the  memoran- 
dum was  never  presented. 

Early  in  July,  1876,  Servia  and  Montenegro,  pre- 
viously restrained  by  Russia,  declared  war  on  Turkey. 
In  the  course  of  the  negotiations  for  an  armistice,  Rus- 
sia mobilized  200,000  men  on  the  Turkish  frontier.  The 
next  step  was  a  conference  of  the  powers  in  Constanti- 
nople, December,  1876,  to  January,  1877,  at  which  Lord 
Salisbury  represented  Great  Britain.  This  conference 
broke  up  without  reaching  any  result. 

After  the  close  of  the  conference,  the  Porte  entered 
into  negotiations  with  the  revolted  provinces  of  Servia 
and  Montenegro.  The  great  powers  meanwhile  signed, 
March  31,  1877,  an  agreement  known  as  the  London 
Protocol,  which  set  forth  the  conclusions  of  the  powers 
relative  to  the  pacification  of  the  Turkish  provinces. 
But  Lord  Derby  accompanied  his  signature  with  the 
following  declaration:  "Inasmuch  as  it  is  solely  in 
the  interests  of  European  peace  that  Her  Britannic 
Majesty's  Government  have  consented  to  sign  the 
protocol  proposed  by  that  of  Russia,  it  is  understood 
beforehand  that  in  the  event  of  the  object  proposed 
not  being  attained,  namely,  reciprocal  disarmament  on 
the  part  of  Russia  and  Turkey,  and  peace  between 
them,  the  protocol  in  question  shall  be  regarded  as 
null  and  void."  (Foreign  Relations,  1877,  p.  573.) 
After  such  an  invitation,  it  was  not  to  be  expected  that 
the  Turkish  government  would  do  other  than  reject  the 
terms  of  the  powers. 

The  Disraeli  government  was  evidently  sparing  no 
effort  to  shield  the  Turk  and  to  minimize  the  crimes  of 

9 


130  INTERNATIONAL   POLICE 

which  he  was  guilty.60     Lord  Granville  wrote  Glad- 
stone (February  27,  1877,  Life  of  Lord  Granville  by 


80The  important  confidential  correspondence  recently  pub- 
lished in  the  6th  volume  of  Buckle 's  Life  of  Disraeli  shows  that 
the  British  Premier  was  unfortunately  committed  to  defend- 
ing Turkey  against  the  outcry  at  the  Bulgarian  atrocities  be- 
fore he  knew  the  truth  of  the  accusations.  It  was  natural  that 
he  should  rely  upon  being  informed  by  the  British  Ambassador, 
Sir  H.  Elliott  (Buckle's  Life  of  Disraeli,  vol.  VI,  p.  64),  of 
all  that  was  going  on  in  the  Balkans.  In  a  letter  of  Decem- 
ber 2,  1876,  Disraeli  wrote  to  Sir  Stafford  Northcote  relative 
to  the  popular  demonstrations  in  favor  of  the  oppressed  Chris- 
tians : 

"Elliot's  stupidity  has  nearly  brought  us  to  a  great  peril. 
If  he  had  acted  with  promptitude,  or  even  kept  himself,  and 
us,  informed,  these  'atrocities'  might  have  been  checked.  As 
it  is,  he  has  brought  us  into  the  position,  most  unjustly,  of 
being  thought  to  connive  at  them. 

"But  when  we  have  committed  a  mistake,  or  find  ourselves 
in  difficulties,  the  best  thing  is  to  turn  them  into  'commodi- 
ties,' as  Falstaff  says,  or  something  like  it.  The  'atrocities' 
will  permit  us  to  dictate  to  the  Porte.  That  was  the  meaning 
of  the  telegram  respecting  which  you  wrote  to  me.  It  is  to 
be  hoped,  that  the  leading  part,  which  England  may  take,  in 
obtaining  an  armistice,  and  afterwards  in  the  preliminaries, 
will  make  the  excited  'Public'  forget,  or  condone,  the  Ellio- 
tiana. 

"I  hope  this  may  be  effected  long  before  your  meeting." 
(Buckle:  The  Life  of  Benjamin  Disraeli,  1920,  vol.  VI,  p. 
51.) 

In  a  letter  the  next  day  to  Lord  Salisbury,  he  remarks: 
"Had  it  not  been  for  those  unhappy  'atrocities'  we  should 
have  settled  a  peace  very  honorable  to  England,  and  satis- 
factory to  Europe. 

"Now,  we  are  obliged  to  work  from  a  new  point  of  depar- 
ture, and  dictate  to  Turkey,  who  has  forfeited  all  sym- 
pathy..." (Ibid,  p.  52.) 

See  Queen  Victoria's  opinion.     (Ibid,  p.  64.) 

But  having  taken  his  stand,  Lord  Beaconsfield  was,  as  the 
above  letter  indicates,  too  consummate  a  politician  to  be  will- 
ing to  weaken  his  prestige  for  the  mere  purpose  of  rectifying 
his  mistake.  Thenceforth  we  find  that  he  continues  to  mini- 
mize the  misdeeds  of  the  Turk,  although  he  admits  that  there  is 
necessity  for  reform. 


UNCIVILIZED  WARFARE  131 

Lord  Edward  Fitzmaurice,  Vol.  II,  1905,  p.  164),  " 

Derby  last  Tuesday  again  attributed  the  'horrors'  to 
the  feebleness  of  the  Turkish  Government,  whereas  it 
was  the  only  thing  in  which  they  have  shown  any 
energy. ' ' 

Russia  declared  war  and  invaded  Turkey  to  perform 
her  manifest  duty  of  protecting  the  Christian  popula- 
tion of  Turkey  from  the  inhumane  treatment  to  which 
they  were  being  subjected.81  The  Gortchakoff  circular 
dispatch  of  April  7-19,  giving  the  reasons  for  Russia's 
making  war,  discussed  the  ill-treatment  of  the  Chris  - 

The  correspondence  also  shows  how  slow  the  leaders  of  the 
opposition,  Lord  Granville  and  Lord  Hartington,  were  to  take 
up  the  question.  They  supported  rather  than  opposed  the 
Turkophile  policy  of  the  government,  and  seem  to  have  lacked 
sympathy  with  the  popular  issue  which  Gladstone  raised. 
(Ibid,  p.  26  passim,  p.  118.) 

61Russia  was  of  course  strongly  actuated  by  her  desire  of 
acquiring  new  territory  in  the  Balkans.  With  this  object  in 
view,  she  had  signed  a  secret  agreement  with  Austria. 
(Buckle:  Life  of  Disraeli,  1920,  vol.  VI,  p.  115-6.)  It  is  this 
consideration  which  leads  Professor  Woolsey  to  write :  ' '  Thus, 
too,  Eussia  intervened,  in  1877,  in  behalf  of  Bulgaria.  It  was 
based  in  theory  upon  religious  sympathy  and  upon  humanity. 
It  was  a  move,  in  fact,  upon  the  Straits  and  Constantinople, 
in  pursuance  of  Russia's  century-long  program."  (T.  S. 
Woolsey:  America's  Foreign  Policy,  1898,  p.  74.) 

But  even  though  conquest  may  have  been  the  motive  of  the 
Russian  Government,  humanitarian  intervention  to  prevent 
the  inhumane  treatment  of  the  Christians  was  the  justification 
of  Russia's  intervention. 

Mr.  Buckle,  who  writes  with  a  sympathetic  pen,  thus  de- 
scribes what  Disraeli  believed  should  be  the  attitude  of  his 
government :  ' '  It  could  not  intervene,  as  in  the  Crimean  War, 
on  Turkey's  behalf,  owing  to  her  misconduct  and  the  conse- 
quent alienation  from  her  of  popular  sympathy  in  Britain. 
It  should  therefore  adopt  a  position  of  neutrality  in  the  war, 
but  of  watchful  and  conditional  neutrality,  and  should 
at  the  outset  obtain  a  pledge  from  Russia  to  respect  British 
interests  in  Turkey,  such  as  Constantinople,  Egypt,  and  the 
Suez  Canal."  (Buckle:  Life  of  Disraeli,  1920,  vol.  VI,  p. 
134.) 


132  INTERNATIONAL   POLICE 

tian  population  and  the  futile  efforts  of  the  powers  to 
persuade  Turkey  to  inaugurate  reforms,  and  concluded : 
"In  assuming  this  task,  our  august  master  fulfils  duties 
imposed  upon  him  by  the  interests  of  Russia,  whose 
peaceful  development  is  hindered  by  the  permanent  dis- 
turbances of  the  East.  His  Imperial  Majesty  has  the 
conviction  that  he  responds  at  the  same  time  to  the 
sentiments  and  interests  of  Europe."  (Foreign  Rela- 
tions, 1877,  p.  586.) 

Lord  Derby  in  reply,  March  1,  1877,  defended  the 
Turkish  government  and  blamed  Russia  for  not  allow- 
ing further  opportunity  for  negotiations.  He  also 
charged  that  Russia  by  thus  intervening  alone  had 
violated  the  treaty  of  Paris  of  March  30,  1856.  Lord 
Derby's  dispatch  concludes:  "In  taking  action  against 
Turkey  on  his  own  part,  and  having  recourse  to  arms 
without  further  consultation  with  his  allies,  the  Em- 
peror of  Russia  has  separated  himself  from  the  Euro- 
pean concert  hitherto  maintained,  and  has,  at  the  same 
time,  departed  from  the  rule  to  which  he  himself  had 
solemnly  recorded  his  consent.  It  is  impossible  to  fore- 
see the  consequences  of  such  an  act.  Her  Majesty's 
Government  would  willingly  have  refrained  from  mak- 
ing any  observations  in  regard  to  it;  but  as  Prince 
Gortchakoff  seems  to  assume,  in  a  declaration  ad- 
dressed to  all  the  governments  of  Europe,  that  Russia 
is  acting  in  the  interest  of  Great  Britain  and  that  of  the 
other  powers,  they  feel  bound  to  state,  in  a  manner 
equally  formal  and  public,  that  the  decision  of  the  Rus- 
sian Government  is  not  one  which  can  have  their  con- 
currence or  approval."  (Foreign  Relations,  1877, 
p.  587.) 

The  Bulgarian  atrocities  brought  Gladstone  from 
his  retirement  to  champion  the  cause  of  the  down- 
trodden Christians,  but  for  many  reasons  he  did  not 
succeed  in  overturning  the  policy  of  the  government 


UNCIVILIZED  WARFARE  133 

until  the  general  election,  when  the  return  of  the  Liber- 
al party  may  in  some  measure  be  considered  as  a  vote 
of  censure  on  Disraeli's  failure  to  allow  England  to 
support  her  part  of  the  burden  of  intervening  to  pre- 
vent the  abominable  atrocities  perpetrated  by  the 
Turks  on  the  Christians  under  their  sway.82  The  Eng- 

62A  decade  before  these  events,  Lord  Lyons,  when  British 
Ambassador  to  Constantinople,  in  a  letter  to  Lord  Stanley  of 
April  10,  1867,  gives  us  the  following  account  of  the  condition 
of  the  Christians  in  Turkey,  and  the  intolerance  of  which  they 
were  the  victims : 

"Reports  from  the  Consuls  on  the  treatment  of  the  Chris- 
tians will  have  been  pouring  in  upon  you.  The  greater  part 
of  the  grievances  of  the  Christians  are  the  result  of  bad  gover- 
ment  and  bad  administration  of  justice,  and  affect  Mussul- 
mans and  Christians  alike.  Their  peculiar  grievances  are  their 
practical  exclusion  from  the  high  offices  of  the  State,  the  re- 
jection in  many  cases  of  their  evidence  in  the  Law  Courts, 
and  what  is  most  intolerable,  the  position  in  which  they  stand 
socially  and  politically  with  regard  to  the  Turks.  The  Turks 
will  not  look  upon  them  as  equals  and  cannot  trust  them.  In 
fact  the  Christians  cannot  feel  loyalty  to  the  Government  be- 
cause they  are  not  trusted  and  employed ;  and  they  cannot  be 
trusted  and  employed  because  they  are  not  loyal  to  the  Gov- 
ernment. It  is  a  perfect  example  of  a  vicious  circle.  It  is 
useless  to  deny  that  the  position  of  a  Christian  subject  of  the 
Porte  is  a  humiliating  position,  and  it  is  vain  to  expect  that 
within  any  reasonable  time  the  Christians  will  look  upon  the 
existing  Government  as  anything  but  an  evil  to  be  endured 
or  possibly  even  upheld  as  a  less  evil  than  revolution,  but 
nothing  more."  (Lord  Lyons:  A  Record  of  British  Diplo- 
macy, by  Lord  Newton,  Vol.  I,  p.  167.) 

The  motive  put  forward  for  the  various  interventions  in 
Turkey  has  usually  been  the  safety  of  Europe,  but  in  certain 
instances,  among  which  was  this  one,  the  real  motive  has  been 
humanity.  Professor  J.  B.  Moore  gives  this  as  an  example 
of  intervention  to  put  an  end  to  intolerable  conditions 
(Moore's  Digest,  Vol.  IV,  p.  3).  Freeman  Snow  (in  the  sylla- 
bus to  his  valuable  Cases  and  Opinions  on  International  Law, 
1893,  p.  xxiii)  classes  it  in  the  same  category  with  the  case 
of  Greece,  1826.  Morley  in  his  Life  of  Gladstone,  speaking  of 
this  incident  says  (Vol.  II,  p.  555)  :  "Humanity  was  at  the 
root  of  the  whole  matter;  and  the  keynote  of  this  great  cru- 
sade was  the  association  of  humanity  with  a  high  policy  worthy 


134  INTERNATIONAL   POLICE 

lish  historian,  J.  R.  Green,  well  says  in  a  letter  quoted 
by  Morley :  "I  begin  to  see  that  there  may  be  a  truer 
wisdom  in  the  'humanitarianism'  of  Gladstone  than  in 
the  purely  political  views  of  Disraeli.  The  sympathies 
of  people  with  peoples,  the  sense  of  a  common  hu- 
manity between  nations,  the  aspirations  of  nationali- 
ties after  freedom  and  independence,  are  real  political 
forces ;  and  it  is  just  because  Gladstone  owns  them  as 
forces,  and  Disraeli  disowns  them,  that  the  one  has 
been  on  the  right  side,  and  the  other  on  the  wrong  in 
parallel  questions  such  as  the  upbuilding  of  Germany 
or  Italy.  I  think  it  will  be  so  in  this  upbuilding  of  the 
Sclave."83  (John  Morley,  Life  of  Gladstone,  Vol.  II, 
p.  561.) 


of  the  British  name."  Captain  Mahan,  who  is  known  as  an 
Anglophile  nevertheless  speaking  with  approval  of  Russian 
intervention,  says:  "..  .when  Russia,  in  1877,  acting  on  her 
own  single  initiative,  forced  by  the  conscience  of  her  people, 
herself  alone  struck  the  fetters  from  Bulgaria."  (A.  H. 
Mahan:  Some  Neglected  Aspects  of  War,  p.  44;  cf.  also  p. 
48.) 

68Lord  Blachford,  a  practical  statesman  of  long  experience, 
whom  it  is  said  Lord  Granville  wished  to  become  permanent 
Under  Secretary  of  State  for  Foreign  Affairs  and  whose  talent 
and  grasp  of  mind  Cardinal  Newman  considered  preeminent, 
discusses  Russia's  intervention  in  a  letter  dated  May  15,  1878 : 

"1.  I  dare  say  you  are  right  in  saying  that  there  is  a  large 
section  which  upholds  war  against  the  Turks  as  'a  crusade' — 
the  '  Pall  Mall '  is  always  saying  so.  But  I  never  myself  hap- 
pened to  see  any  person  in  the  flesh  who  advocated  it — or  to 
read  any  printed  or  written  paper  in  which  it  was  avowed  or 
could  be  inferred. 

"2.  I  dare  say  that  the  feelings  of  Russians  are  partly 
crusading,  partly  Panslavist — just  as  my  feelings  might  be 
partly  sportsmanlike  and  partly  domestic,  if  I  shot  a  wolf 
which  was  tearing  to  pieces  my  brother — but  the  basis  of  my 
action  would  be  the  desire  to  save  a  human  being  from  a  sav- 
age brute.  The  English  who  felt  strongly  about  Bulgarian 
atrocities  were  neither  Slav  nor  '  Orthodox. ' 

"3.  As  you  allow  of  a  war  for  'suffering  humanity'  you  of 
course  do  not  agree  with  the  passage  of  Mackintosh  which  you 


UNCIVILIZED  WARFARE  135 


quote  (unless  you  explain  it  away) — neither  do  I.a  It  seems 
to  me  transparently  rhetorical.  It  is  plainly  much  more 
wicked  to  attack  on  insufficient  grounds  a  prosperous  and 
virtuous  government  than  a  corrupt  and  desolating  one.  In 
one  you  injure  the  people,  in  the  other  only  the  rulers  and 
their  armies,  with  (supposed)  benefit  to  the  people.  It  is 
also  plainly  a  subject  of  regret  that  a  good  government  should 
be  destroyed,  while  it  may  be  a  subject  of  just  and  stern  re- 
joicing that,  by  whatever  agency,  a  bad  one  should  be  de- 
stroyed, and  its  subjects  transferred  to  those  by  whom  they 
will  be  better  used. 

"4.  Of  the  past  history  of  Russia  I  know  next  to  nothing. 
I  only  see  with  my  eyes  on  maps  the  respective  annexations 
of  England  and  Russia  during  the  last  century  and  a  quarter, 
and  am  astounded  at  the  fact  that  England  should  assume 
the  position  of  accuser  in  this  respect. 

"5.  I  am  disposed  to  look  leniently  on  our  minister's  omis- 
sion to  notice  the  hint  about  Bessarabia.  So  long  as  inde- 
pendent Roumania  lies  between  Turkey  and  Russia  I  cannot 
see  why  50  or  60  miles  more  or  less  of  sea  coast  should  signify. 
Russia's  crime  (which  is  very  disgusting)  is  in  taking  it 
against  the  mill  of  her  ally,  which  did  not  appear  till  the 
Treaty  of  S.  Stefano  (and  perhaps  does  not  now  much  con- 
cern us;  unless  we  want  a  quarrel). 

"6.  I  agree  with  you  in  not  confining  the  delinquencies  of 
England  to  a  single  act  (the  Berlin  Memo.).  I  begin  by  hat- 
ing with  my  whole  soul,  what  may  be  called  our  traditional 
policy  (avowed  by  Palmerston  and  Beaconsfield)  of  bolster- 
ing up,  for  our  own  purposes,  such  a  desolating  and  loath- 
some oppression  (I  conceive  these  words  to  be  chosen  with 
accuracy)  as  Turkey.  Then  I  think  it  was  our  bounden  duty 
to  retrieve  the  tremendous  error  of  guaranteeing  the  'inde- 
pendence and  integrity'  of  such  an  oppressor  as  soon  as  the 
Seraglio  put  itself  in  the  wrong  by  not  giving  effect  to  the 
provisions  of  the  Hatti  Humayun  of  the  Treaty  of  Paris. 
This  duty  arose  probably  very  soon  after  the  Treaty,  but  may 
be  said  (by  an  apologist)  to  have  escaped  notice,  in  so  far  as 


aThe  passage  is  in  Mackintosh's  Essay  on  the  Partition  of  Poland; 
"There  is  no  political  doctrine  more  false  or  more  pernicious  than  that 
which  represents  vices  in  its  internal  government  as  an  extenuation  of 
unjust  aggressions  against  a  country,  and  a  consolation  to  mankind  for 
the  destruction  of  its  independence.  As  no  government  is  without  great 
faults,  such  a  doctrine  multiplies  the  grounds  of  war,  gives  an  unbounded 
scope  to  ambition,  and  furnishes  benevolent  pretexts  for  every  sort  of 
rapine ' ' 


136  INTERNATIONAL   POLICE 


it  merely  appeared  in  reports  and  official  documents.  It  was 
allowed  to  slip  out  of  sight. 

' '  But  three  years  ago  this  duty  forced  itself  upon  our  notice 
by  the  Herzegovinian  revolt,  and  the  English  Ministry  adopted 
a  course  of  action  by  which  they  did  not  merely  neglect,  but 
deliberately  repudiated  it,  taking  'independence  and  integri- 
ty' as  the  key  of  their  policy,  not  in  one  case  or  another,  but 
time  after  time.  The  Constantinopolitan  conference  was  an  ex- 
ceptional incident,  almost  avowedly  forced  on  the  Govern- 
ment by  the  Bulgarian  agitation — made  abortive  by  parallel 
communications  with  Turkey — and  at  the  close  of  which  the 
Government  (by  the  appointment  of  Layard  and  other  mat- 
ters) have  come  back  to  what  I  should  call  'their  vomit,'  that 
is  to  say  a  course  of  obstructive  special  pleading,  hiding  the 
reconstruction  of  what  is  intolerable,  under  the  phrase  (which 
I  see  you  adopt)  'the  faith  of  treaties.'  I  say  this  because  it 
is  too  evident  to  be  denied  that  our  present  proceedings  are 
such  as  to  enable  Turkey  to  prepare  for  a  fresh  struggle, 
that  in  case  of  such  a  struggle  we  have  her  as  an  ally,  and  that 
in  case  of  such  an  alliance  we  must  necessarily  repay  the  Sul- 
tan and  his  Ministers  by  replacing  them  more  or  less  in  pos- 
session of  the  authority  of  which  Russia  threatens  to  deprive 
them. 

"On  the  main  point,  I  think  the  great  difference  between 
v.s  is  that  I  am  thoroughly  impressed  by  the  belief  that  Turkey 
is  incorrigible,  while  Russia  is  in  process  of  improvement. 
These  things — both  of  them — come  to  my  mind  with  the  clear- 
ness of  the  sun.  And  the  suggestion  of  allowing  Turkey  a 
year  for  improvement  appears  to  me  like  allowing  a  notorious- 
ly bankrupt  debtor  a  month's  respite,  during  which  he  will 
remove  his  goods,  and  at  the  end  of  which  the  creditor  (Rus- 
sia) will  have  to  recommence  an  expensive  litigation  which, 
when  the  dilatory  plea  was  urged,  was  on  the  point  of  being 
brought  to  a  hearing,  sure  to  end  in  a  success.  I  should  be 
very  sorry  to  stand  godfather  to  the  motives  of  Russian  states- 
men. I  dare  say  they  are  as  selfish  as  our  own  profess  to  be. 
But  they  have  this  advantage  that  their  interests  (so  far  as 
the  liberation  of  the  Turkish  provinces  go)  coincide  with  the 
interests  of  humanity  with  which  our  own  (alleged)  inter- 
ests conflict.  And  the  result  is  that  their  present  position, 
as  viewed  in  future  history,  is  on  the  road  to  grandeur — ours 
on  the  road  to  meaness. "  (Letters  of  Lord  Blachford,  edited 
by  Marindin,  London,  1896,  p.  389-391 ;  see  ibid,  pp.  295 ; 
441,  for  references  to  Granville  and  Newman's  estimate  of 
Blachford.) 


UNCIVILIZED  WARFARE  137 

The  violation  of  the  laws  of  civilized  warfare  have 
led  to  several  other  interventions.64  In  1835  the  British 
Government  intervened  to  prevent  the  Carlists  from 
shooting  their  prisoners.  (See  Abdy's  Kent,  p.  244, 
note  2;  British  State  Papers,  Vol.  24,  p.  396-416.) 
When  the  Nicaraguan  Revolutionists  under  Zelaya 
bombarded  Managua  (1893)  without  notice,  killing  and 
injuring  persons  near  the  American  legation,  a  strong 
protest  was  presented  against  this  as  an  "act  of  bar- 
barism," but  when  General  Zelaya  justified  the  act  on 
the  ground  that  Managua  was  a  fortified  place  from 
which  the  enemy  had. .  ."fired  on  his  forces  who  wish- 
ing to  avert  hostilities  in  reality  remained  in  front  of 
the  city  several  hours  without  firing,"  and  that  they 
had  detained  a  flag  of  truce,  the  American  Minister  ac- 
cepted the  explanation  as  a  reasonable  one.  (Moore's 
Digest,  Vol.  VII,  p.  181-2.) 

The  following  incident  which  occurred  in  Italy  may 
perhaps  be  considered  typical  of  this  class  of  inter- 
ventions :  "On  the  failure  of  Lord  Minto 'a  mediation, 
the  Sicilians  proceeded  to  decree  the  separation  of  the 
crown  of  Naples  and  Sicily,  and  proposed  to  the  Duke 
of  Genoa  to  become  their  king,  which  he,  however,  de- 
clined. The  King  of  Naples,  on  the  arrival  of  this 
news,  despatched  ships  and  troops  against  Messina 
and  Palermo.  The  bombardment  of  these  towns  was 
attended  by  such  acts  of  violence  and  cruelty  on  both 
sides  that  the  English  and  French  fleets  interfered  to 
procure  an  armistice.  The  period  for  cessation  of  hos- 
tilities expired,  however,  without  any  arrangement 
being  arrived  at.  The  fight  was  renewed;  and  the 


tuWe  do  not  consider  here  interventions  which  vindicate  the 
law  of  war  between  independent  states,  which  have  been  con- 
sidered in  the  preceding  section  (§7).  Such  interventions 
are,  of  course,  ordinary  instances  of  the  vindication  of  the  law 
of  war,  and  are  not  matters  of  internal  concern,  as  in  the  case 
of  civil  conflicts.  In  both  classes  of  cases,  however,  humani- 
tarian considerations  enter  as  a  motive  of  governmental  action. 


138  INTERNATIONAL   POLICE 

Sicilian  revolt  was  finally  put  down  by  the  middle  of 
the  year  1849."  (Extract  from  Ashley's  Lord  Pal- 
merston,  Vol.  I,  p.  57 ;  Cf .  Stapleton :  Intervention,  p. 
84-5.) 

In  these  cases  in  which  the  insurrectionists  are  sub- 
jected to  cruelties  not  permitted  by  the  laws  of  war, 
there  is,  as  we  have  seen,  a  just  ground  for  humani- 
tarian intervention,  quite  apart  from  any  consideration 
of  material  injury  done  to  neighboring  states  and 
their  nationals,  but  when  prolonged  strife  and  anarchy 
seriously  affect  the  latter,  there  arises  still  another 
justification  for  intervention  by  way  of  impeachment 
of  the  effective  sovereignty  of  the  titular  government 
over  the  territory  in  question.  (See  discussion  rela- 
tive to  the  recognition  of  insurgents  and  belligerents, 
§14.) 

To  conclude  our  consideration  of  humanitarian  inter- 
vention to  put  an  end  to  civil  wars  which  are  conducted 
in  a  manner  to  shock  public  opinion,  we  shall  quote 
from  John  Stuart  Mill's  article  discussing  interven- 
tion: "A  case  requiring  consideration  is  that  of  a 
protracted  civil  war,  in  which  the  contending  parties 
are  so  equally  balanced  that  there  is  no  probability  of 
a  speedy  issue;  or  if  there  is,  the  victorious  side  can- 
not hope  to  keep  down  the  vanquished  but  by  severities 
repugnant  to  humanity,  and  injurious  to  the  permanent 
welfare  of  the  country.  In  this  exceptional  case  it 
seems  now  to  be  an  admitted  doctrine,  that  the  neigh- 
boring nations,  or  one  powerful  neighbor  with  the 
acquiescence  of  the  rest,  are  warranted  in  demanding 
that  the  contest  shall  cease,  and  a  reconciliation  take 
place  on  equitable  terms  of  compromise.  Intervention 
of  this  description  has  been  repeatedly  practiced  dur- 
ing the  present  generation,  with  such  general  approval, 
that  its  legitimacy  may  be  considered  to  have  passed 
into  a  maxim  of  what  is  called  international  law." 


INJUSTICE  139 

(John  Stuart  Mill:  Dissertations  and  Discussions,  vol. 
Ill,  p.  172.  "A  Few  Words  on  Non-intervention,"  re- 
printed from  Fraser's  Magazine,  December,  1859,  p. 
773-4.) 

§  8(d).      INJUSTICE65 

Humanitarian  intervention  has  frequently  been  em- 
ployed for  the  protection  of  individuals  against  an 
abusive  treatment,  either  the  arbitrary  confiscation  of 
their  property  or  the  restraint  of  their  personal  liberty 
without  justification  in  law.  When  the  authorities  of 
an  independent  state  persist  in  administering  the  law 
with  injustice  and  cruelty  so  excessive  as  to  constitute 
an  intolerable  abuse  and  to  shock  the  opinion  of  other 
states,  it  has  led  in  certain  instances  to  intervention  on 
what  we  may  properly  designate  as  the  ground  of  de- 
nial of  justice. 

The  dangers  and  burdens  which  the  repression  of  an 
occasional  abuse  would  entail,  as  well  as  the  remem- 
brance of  the  fact  that  every  state  has  given  some 
causes  of  complaint,  prevents  intervention  except  in 
the  case  of  persistent  abuses  or  extraordinary  crimes., 
To  this  latter  category  belongs  the  assassination  of 
King  Alexander  and  Queen  Draga  of  Servia. 

EXTRAORDINARY  CRIMES 

On  the  night  of  the  10th  of  June,  1903,  a  military  up- 
rising occurred  at  Belgrade.  Officers  made  their  way 
into  the  Konak  and  massacred  King  Alexander  and 
Queen  Draga,  and  hacked  them  with  savage  ferocity. 
According  to  the  official  report  of  the  autopsy,  the 
King  received  forty  wounds  and  the  Queen  sixty-five. 

85< '  Injustice  "  is  a  somewhat  vague  term  for  which  we  might 
substitute  "denial  of  justice,"  or  "abusive  treatment  of  indi- 
viduals." 


140  INTERNATIONAL   POLICE 

(See  the  Temps  of  June  17,  1903.)  General  Zinzar 
Markovitch,  President  of  the  Council,  and  General 
Pavlovitch,  Minister  of  War,  the  two  brothers  of  the 
Queen,  Nicolas  and  Nicodeme  Lunjevitch,  were  also 
among  the  number  of  the  victims.06 

The  horror  caused  by  these  events  throughout  Eu- 
rope was  profound,  and  the  condemnation  was  unani- 
mous. An  ordinary  conflict  between  the  two  opposing 
factions,  the  Obrenovitches  and  the  Karageorgevitches, 
would  not  have  astonished  Europe.  There  were  causes 
enough,  as  Europe  well  knew,  to  explain  the  revolution 
at  Belgrade,  but  that  was  no  justification  for  the  scenes 
of  carnage  which  took  place  on  the  night  of  the  10th 
of  June.  To  have  deposed  King  Alexander  would  have 
been  reasonable,  not  so  his  assassination.67 

The  governments  joined  in  the  general  reprobation 
of  the  murder  itself.  M.  Delcasse,  the  Minister  for 
Foreign  Affairs,  as  soon  as  he  was  informed  of  what 
had  occurred,  called  upon  the  Servian  Minister  to  ex- 
press to  him  the  profound  condolences  of  the  French 
Government.  (See  Journal  des  Debats  of  June  13, 
1903).  A  similar  course  was  adopted  by  the  King  of 
Greece,  his  ministers,  and  the  diplomatic  corps  ac- 

66This  account  of  the  assassination  of  King  Alexander  and 
Queen  Draga  is  based  upon  that  given  by  Professor  Jules 
Basdevant  in  the  Revue  generate  de  droit  international, 
vol.  XI,  1904,  p.  105-114.  Professor  Basdevant  discusses  the 
juridical  principles  involved,  as  well  as  the  events.  We  have 
translated  and  quoted  textually,  for  the  most  part,  the  por- 
tions which  contains  Professor  Basdevant 's  statement  of  the 
facts,  but  have  omitted  his  comments  and  discussion,  for 
which  the  reader  is  referred  to  the  original.  As  his  source, 
M.  Basdevant  refers  mainly  to  the  Journal  des  Debats  for 
June,  1903. 

G7M.  Basdevant  remarking  that  "It  is  not  necessary  to  go 
back  to  the  precedents  of  the  Borgias'  time,"  draws  a  com- 
parison between  this  instance  and  that  of  Tsar  Paul  I,  who 
also  was  assassinated  by  his  officers.  M.  Basdevant  might  have 
added :  "with  the  connivance  of  his  successor." 


INJUSTICE  141 

credited  to  him.  Court  mourning  was  ordered  in  Rus- 
sia, in  Spain,  and  in  Roumania.  Several  of  the  states 
that  recognized  the  government  of  Peter  I  expressed 
their  condemnation  of  the  events  of  the  night  of  June 
10.  In  the  House  of  Commons,  the  Prime  Minister,  Mr. 
Balfour,  stigmatized  the  act  as  a  crime  which  dishon- 
ored the  capital  of  Servia.  In  the  House  of  Lords, 
Lord  Lansdowne  discussed  the  means  by  which  the 
Government  might  seek  to  ''express  its  indignation." 
In  the  Hungarian  Chamber,  similar  sentiments  were 
expressed.  But  in  the  Italian  Senate,  Admiral  Moriii 
made  a  declaration  which  may  be  considered  to  express 
the  views  of  the  different  powers.  * '  The  government, ' ' 
said  he,  "  shares  the  sentiments  of  horror  which  this 
tragic  occurrence  has  aroused  in  Italy  as  in  all  parts  of 
the  civilized  world.  Nevertheless,  even  though  this 
feeling  dominates  all  other  impressions  in  the  presence 
of  this  terrible  tragedy,  the  Government  must  remem- 
ber that  the  events  which  took  place  at  Belgrade,  not- 
withstanding their  atrocity,  relate  to  internal  affairs." 
It  was  not  for  other  states  to  take  notice  of  them.  Simi- 
lar views  were  expressed  by  Count  Goluchowski  be- 
fore the  Budget  Commission  of  the  Austrian  Delega- 
tion. (See  Temps,  January  13).  This  was  also  the 
opinion  of  the  powers.  But  if  the  other  states  were  not 
called  upon  to  take  action  to  secure  the  adequate  pun- 
ishment of  the  culprits,  should  they  hold  aloof  from  the 
new  government  established  in  Servia?  This  was  a 
question  which  soon  arose. 

A  provisional  government  was  soon  formed  under 
the  presidency  of  M.  Avokoumovitch,  and  it  under- 
took to  maintain  order  until  the  election  of  a  new 
sovereign  by  the  nation.  In  a  communication  to  the 
press,  the  provisional  government  expressed  the  con- 
viction that  by  so  doing  it  would  secure  "for  the  new 


142  INTERNATIONAL   POLICE 

order  of  things  the  sympathy  of  the  European  pow- 
ers." But  the  latter  refused  to  recognize  the  provis- 
ional government  and  to  enter  into  official  relations 
with  it.  They  directed  their  representatives  at  Bel- 
grade to  limit  their  action  to  the  protection  of  their 
nationals.  This  course  could  be  adopted  without  incon- 
venience, since  it  was  not  expected  to  be  prolonged  be- 
yond a  brief  period,  and  it  would  give  satisfaction  to 
public  opinion,  which  accused  the  provisional  govern- 
ment of  complicity  in  the  murders,  because  of  the  fact 
that  it  was  established  so  soon  after  the  murder,  and 
because  it  contained  among  its  members  some  of  those 
who  had  participated  in  the  conspiracy. 

The  situation  was  changed  after  the  Skoupchtina 
had  chosen  Peter  Karageorgevitch  king  by  unanimous 
vote.68 

The  powers  then  decided  to  recognize  him,  and  they 
did  so  without  delay,  but  not  all  of  them  with  an  equal 
grace.  The  Tsar  and  the  Emperor  of  Austria  led  the 
way  and  congratulated  Peter  I  upon  his  election.  The 
King  of  Italy  and  the  Prince  of  Montenegro  were  also 
among  the  first  to  express  their  good  wishes,  as  was 
to  be  expected  on  account  of  family  ties.  The  other 
powers  quickly  followed  the  example  of  the  two  em- 
pires most  directly  interested  in  Balkan  affairs.  They 
acknowledged  the  receipt  of  the  announcement  of  King 
Peter's  accession  to  the  throne,  and  addressed  their 
felicitations  to  him.  Great  Britain  was  somewhat 
slower  than  the  others  to  recognize  the  new  King. 
Edward  VII  delayed  his  reply  for  five  days. 

The  different  views  of  the  powers  were  made  evident 
by  the  instructions  which  they  gave  to  their  diplomatic 


"Professor  Basdevant,  discussing  the  recognition  of  Peter 
I  of  Servia,  states  that  to  refuse  to  recognize  the  complete  com- 
petency of  a  state  to  choose  its  chief  would  amount  to  an  inter- 
vention. 


INJUSTICE  143 

representatives  at  Belgrade.  The  full  powers  of  these 
diplomats  had  come  to  an  end  with  the  death  of  Alex- 
ander I,  the  sovereign  to  whom  they  had  been  accred- 
ited. This  was  explained  by  Mr.  Balf  our  in  the  House 
of  Commons,  and  Lord  Lansdowne  in  the  House  of 
Lords.  It  had  been  suggested  in  the  press,  and  the 
English  statesmen  had  considered  the  recalling  of  their 
agents  from  Belgrade  to  indicate  their  condemnation, 
but  this  was  not  done,  and  the  members  of  the  diplo- 
matic mission  were  allowed  to  remain  for  the  purpose 
of  reporting  upon  events,  and  protecting  national  in- 
terests. 

After  the  election  of  Peter  I,  and  before  his  entry 
into  Belgrade,  the  Russian  Minister  renewed  official 
relations  by  a  visit  to  the  Servian  Minister  for  Foreign 
Affairs,  and  he  was  present,  with  the  Austrian  Minis- 
ter, when  the  king  arrived  to  take  the  oath  of  office. 
The  representatives  of  the  other  powers  did  not  take 
part  in  this  ceremony.  They  had  received  orders  from 
their  governments  not  to  appear.  Several  of  them 
even  left  Belgrade.  Great  Britain,  in  this  instance, 
also  went  further  than  the  others  in  expressing  disap- 
probation, since  her  minister  was  the  first  to  leave. 

In  the  instructions  which  the  powers  had  given  to 
their  ministers  they  committed  no  impropriety.  The 
diplomatic  agents  upon  the  death  of  the  king  had  lost 
their  official  character,  and  their  absence  from  this  cere- 
mony was  natural.  But  even  though  they  kept  within 
the  limits  of  the  law,  the  effect  of  this  absence  was  to 
manifest  the  sentiments  of  reprobation  which  the 
powers  entertained  because  of  the  crime  of  June  10. 
Nevertheless,  as  Peter  I  was  the  recognized  King  of 
Servia  they  did  not  delay  in  renewing  the  letters  of 
credence  of  their  representatives  at  Belgrade.  Certain 
of  the  powers,  although  they  did  not  consider  that  they 
should  concern  themselves  with  what  was  a  question  of 


144  INTERNATIONAL   POLICE 

internal  affairs,  felt,  nevertheless,  that  they  ought  to 
express  their  opinions  and  give  their  advice  to  the 
Servian  Government.  Emperor  Francis  Joseph,  in 
his  telegram  in  reply  to  the  announcement  of  the  elec- 
tion of  Peter  I,  wished  that  he  might  "  happily  accom- 
plish the  noble  mission  which  was  confided  to  him  by 
helping  his  country  to  recover  the  good  opinion  which 
she  had  lost  in  the  eyes  of  the  civilized  world  in  con- 
sequence of  the  odious  and  universally  abhorred  crime 
recently  committed. ' '  The  Russian  Government,  in  its 
official  organ,  Messager  du  gouvernement,  published  a 
communication  in  which  the  Government  of  the  Tsar 
demanded  the  punishment  of  the  assassins,  and  Edward 
VII,  in  his  telegram  of  June  30th,  expressed  to  Peter  I 
his  hope  to  see  reestablished  the  reputation  of  his  coun- 
try upon  which  recent  events  had  left  so  regrettable  a 
stain. 

The  counsel  of  the  powers  was  without  effect.  Not- 
withstanding the  good  intentions  manifested  by  King 
Peter  upon  his  election,  the  regicides  were  not  prose- 
cuted because  a  decision  of  the  Skoupchtina  during  the 
interregnum  had  covered  them  by  an  amnesty.  This 
fact  and  the  favors  shown  to  the  officers  who  had  par- 
ticipated in  the  assassination  led  to  a  new  military 
plot  wrhich,  however,  did  not  succeed.  In  several  Eu- 
ropean capitals,  the  Servian  officers  were  ostracized. 
At  St.  Petersburg  the  officers  who  were  sent  to  escort 
the  returning  children  of  King  Peter  were  not  received, 
on  the  ground  that  they  had  been  implicated  in  the  as- 
sassination of  the  former  sovereigns.  A  rumor  even 
was  circulated  that  when  King  Peter  expressed  a  desire 
to  visit  the  German  Court,  Emperor  William  had  re- 
plied that  he  would  refuse  to  receive  the  patron  of 
regicide  officers.  Finally,  the  entire  diplomatic  corps 
left  Belgrade  to  avoid  coming  in  contact  with  the  regi- 
cide officers  who  were  attached  to  the  person  of  the 


INJUSTICE  145 

King  during  the  reception  on  New  Year's  day.  To 
lessen  the  effect  of  this  action,  the  King  thought  best  to 
absent  himself  also  from  his  capital  on  the  pretext  that 
he  was  celebrating  at  Tapoli  the  centenary  of  the  war 
of  deliverance.  The  Charges  d 'Affaires  at  Belgrade 
merely  wrote  their  names  in  the  visitor's  book  at  the 
palace. 

Some  months  after  the  occurrence  of  these  events, 
the  American  Secretary  of  Legation  at  Athens,  in  a  dis- 
patch of  April  7,  1904,  reported  to  Secretary  Hay: 
"  . . .  the  transfer  of  several  of  the  officers  concerned  in 
the  murder  of  the  late  King  and  Queen. ' '  The  dispatch 
concludes  as  follows:  "The  result  of  this  measure  has 
been  that  the  chief  objection  of  the  powers  against 
renewing  diplomatic  relations  with  Servia  has  been  re- 
moved, and  Russia  immediately  announced  the  appoint- 
ment of  M.  Goubastoff,  at  present  minister  to  the  Vati- 
can, to  succeed  M.  Tcharykoff  as  minister  at  Belgrade. 
Italy  has  also  informed  King  Peter  that  the  Italian 
minister  will  immediately  ask  for  an  official  reception, 
and  it  is  expected  that  the  other  countries  will  soon 
follow  the  example  of  Italy  and  Russia."  (Foreign 
Relations,  1904,  p.  800.) 

Although  an  occasional  instance  of  intervention  in 
the  case  of  an  extraordinary  crime  or  transgression 
may  properly  be  classed  as  humanitarian  and  justified 
in  law,  ordinary  intervention  to  prevent  injustice  is  in 
practice  restricted  to  instances  in  which  a  government 
has  been  guilty  of  persistent  misconduct  or  a  prolonged 
neglect  to  remedy  unjust  conditions  within  its  juris- 
diction. 

A  typical  instance  of  action  to  remedy  persistent  in- 
justice was  the  collective  intervention  of  the  powers  in 
Morocco  in  1909  because  of  the  employment  of  torture 

to  obtain  evidence  from  witnesses. 
10 


146  INTERNATIONAL   POLICE 

PEBSISTENTLY  ABUSIVE  TREATMENT 

From  Professor  Antoine  Rougier,  we  borrow  the  fol- 
lowing interesting  account  of  the  collective  interven- 
tion of  the  powers  in  Morocco : 

"During  the  summer  of  1909,  Moulay-Hafid  under- 
took a  successful  campaign  against  the  Eoghui,  or 
claimant  to  the  throne  of  Morocco,  Bou-Hamara.  The 
Roghui  and  a  number  of  his  adherents  fell  into  the  Sul- 
tan's  hands.  He  declared  his  prisoners  guilty  of  re- 
bellion, and  punished  them  with  the  utmost  severity, 
so  as  to  impress  the  native  population.  The  most  usual 
punishment  passed  upon  the  rebels  was  to  cut  off  their 
hands  and  feet.  The  punishments  often  involved  the 
most  refined  torture,  terminating  in  a  slow  death.  The 
traditional  torture  with  salt  which  had  been  given  up  in 
Morocco  many  years  ago  was  reintroduced.  As  for 
the  Roghui,  while  waiting  for  his  sentence,  he  had  been 
shut  up  in  an  iron  cage  like  a  wild  beast  and  displayed 
to  the  gibes  of  the  populace. 

'  *  These  acts,  reported  by  the  press,  aroused  the  sym- 
pathy of  Europe.  A  certain  number  of  the  members 
of  the  French  Parliament  addressed  themselves  to  the 
Minister  for  Foreign  Affairs  and  asked  that  France 
should  intervene  in  Morocco  to  put  an  end  to  these 
scenes  of  cruelty,  and  to  save  the  Roghui  from  the  pun- 
ishment which  apparently  was  reserved  for  him.  The 
minister  willingly  consented  and  gave  instructions  to 
this  effect  to  the  French  Minister  at  Tangiers,  M.  Reg- 
nault.  Similar  opinions  were  expressed  in  most  of  the 
countries  of  Europe.  The  Spanish  Minister  for  For- 
eign Affairs,  in  particular,  gave  corresponding  instruc- 
tions to  his  representative  to  the  Sherifian  Govern- 
ment. (See  Journal  des  Debats,  Aug.  29, 1909.) 

"As  early  as  August  30,  1909,  two  consuls  at  Fez, 
those  of  France  and  England,  M.  Gaillard  and  Mr. 


INJUSTICE  147 

MacLead  (see  Matin,  September  4,  1909)  had  ad- 
dressed remarks  to  the  Sultan  in  a  purely  friendly  and 
private  capacity,  and  in  accordance  with  the  informal 
and  unofficial  instructions  of  their  respective  govern- 
ments. When  Moulay-Hafid  seemed  little  disposed  to 
give  heed  to  them,  the  members  of  the  diplomatic  corps 
at  Tangiers  drafted  a  collective  letter  in  which  they 
demanded  that  the  Sultan  abandon  torture  in  Morocco, 
namely  all  bodily  punishment  producing  mutilations  or 
slow  death,  and  that  in  the  future  he  observe  '  the  laws 
of  humanity.'  This  letter  was  carried  by  a  special 
messenger  and  it  was  delivered  to  the  Sultan  by  the 
Consular  Corps  at  Fez,  presided  over  by  the  dean  of 
the  corps,  and  when  it  was  delivered  it  was  accom- 
panied by  verbal  representations."  (See  Journal  des 
Debats  of  September  4, 10, 11,  and  15, 1909.) 

"This  second  proceeding  [demarche],  undertaken  by 
the  representatives  of  the  European  powers,  undoubt- 
edly amounted  to  a  diplomatic  intervention  in  Sherifian 
affairs  [administration].  The  result  in  any  event  was 
unfortunate.  The  Sultan  gave  to  the  assembled  con- 
suls all  the  assurances  for  which  they  had  asked  and 
he  solemnly  promised  to  observe  in  the  future  the  laws 
of  humanity.  Soon  after  their  departure  he  ordered 
the  Boghui,  his  enemy,  to  be  immediately  put  to  death, 
and  addressed  a  long  memorandum  to  a  paper  in  Tan- 
giers (La  Depeche  marocaine  of  Sept.  10,  1909)  to 
justify  the  measures  of  repression  employed  against 
the  adherents  of  Bou-Hamara.69  The  Minister  for 
Foreign  Affairs,  in  making  a  report  of  this  incident  to 
the  Council  of  the  Ministers,  could  do  no  more  than 

69This  note  is  discussed  in  the  Matin  of  Sept.  10,  1909,  and 
in  the  Petit  Parisien  of  Oct.  19,  1909. 

Upon  the  basis  of  the  facts  as  given  above,  Rougier  enters 
upon  an  interesting  discussion  of  the  legality  of  humanitarian 
intervention,  of  which  he  says,  this  is  an  instance. 


148  INTERNATIONAL   POLICE 

recognize  the  failure  of  the  European  intervention.70 
(Translated  from  A.  Rougier  in  Revue  gen  {'rale  de 
droit  international  public,  vol.  17  (1910),  p.  98-9.) 

From  the  reminiscences  of  an  experienced  diplomat, 
we  draw  another  illustration :  Sir  Frederick  St.  John, 
British  Minister  to  Central  America  in  the  early  eigh- 
ties, convinced  himself  after  a  careful  examination  that 
the  then  President  of  Guatemala,  Barios,  was  a  blood- 
thirsty tyrant  who  did  not  hesitate  to  make  away  with 
his  victims  and  to  subject  them  to  the  most  revolting 
cruelties.  The  British  Minister  was  deeply  stirred  by 
what  he  learned,  and  convinced  that  there  was  justifi- 
cation for  a  report  to  the  Foreign  Office  of  what  was 
going  on  in  Guatemala.  "When  my  report  reached 
home,"  writes  Sir  Frederick,  "it  was  printed  and  com- 
municated to  several  Continental  Governments,  with 
the  object  of  concerting  as  to  what  steps  should  be 
taken  in  common ;  but,  with  one  exception,  none  of  my 
foreign  colleagues  corroborated  my  statements;  not- 
withstanding that  they  had  been  the  principal  source 
whence  I  derived  my  information,  which,  from  a  much 
longer  residence  than  mine,  and  a  wider  and  more  in- 
timate acquaintance  with  the  natives,  they  were  quali- 
fied to  give."  One  of  the  diplomatic  representatives 
was  sufficiently  disloyal  to  communicate  Sir  Freder- 
ick 's  report  to  President  Barios  who  behaved  with  such 
insolence  to  the  British  Minister  that  his  government 
ordered  him  by  telegraph,  "to  leave  the  country  at 
once,  and  come  home."  "The  reason  of  this  repudia- 
tion," remarks  Sir  Frederick,  "was  obvious.  None  of 

70In  his  article  on  the  Theory  of  Humanitarian  Interven- 
tion, published  in  the  same  Revue  (ibid,  p.  477),  M.  Rougier 
refers  to  this  incident  and  remarks  that  in  the  month  of  Sep- 
tember, 1909,  the  powers  who  had  signed  the  Act  of  Algeciras, 
in  a  diplomatic  note  addressed  to  the  Sultan  of  Morocco, 
based  their  action  squarely  on  the  right  [la  theorie]  of  hu- 
manitarian intervention. 


INJUSTICE  ,    149 

my  foreign  colleagues  were  in  the  regular  diplomatic 
service,  and  must  have  felt  that,  if  recalled  by  their 
Governments,  they  would  receive  no  appointment  else- 
where. 

"My  own  position  was  different;  but,  on  the  other 
hand,  I  exposed  myself  to  the  suspicion  that  I  had  been 
actuated  by  a  desire  to  obtain  another  post.  I  can  only 
affirm  that  nothing  was  farther  from  my  thoughts.  I 
had  just  set  up  a  very  costly  establishment  on  my  mar- 
riage, and  it  was  my  interest  to  remain  for  some  time 
at  my  post  and  recover  from  my  excessive  outlay. ' ' 

When  the  British  Minister  left  Guatemala,  the 
American  Minister,  Mr.  Hall,  accompanied  him  for  a 
considerable  distance,  evidently  for  the  purpose  of 
shielding  him  against  outrages  from  the  local  authori- 
ties on  account  of  the  report  which  he  had  made  to  his 
government. 

"On  arriving  in  London,"  writes  Sir  Frederick,  "I 
reported  myself  at  the  Foreign  Office,  where  it  at  once 
became  evident  to  me  that  my  account  of  what  was 
going  on  in  Guatemala  met  with  little  credence ;  and  I 
was  advised  by  an  'Assistant  Under-Secretary  of 
State'  Ho  go  to  the  country  and  rest.'  He  afterwards 
informed  a  relative  of  mine  that  I  was  suffering  from 
1  President  on  the  brain. ' 

"I  pondered  over  this  official  non-medical  opinion, 
and  came  to  the  conclusion  that  my  foreign  colleagues 
at  Guatemala  were  wise  in  their  generation  in  withhold- 
ing from  their  governments  the  information  I  had,  in  a 
thoughtless  moment,  given  to  mine,  and  of  which  they 
were  as  cognizant  as  myself."  (Sir  Frederick  St. 
John:  Reminiscence  of  a  Retired  Diplomat,  p.  231-6.) 


150  INTERNATIONAL   POLICE 

CONSTITUTIONALISM 

Intervention  to  prevent  injustice  cannot  legally  be 
made  a  ground  for  interfering  in  the  internal  political 
affairs  of  an  independent  state  to  establish  represen- 
tative institutions  or  any  other  form  of  constitution  or 
government.  However  morally  justifiable  interference 
for  such  a  purpose  may  be,  it  remains  an  act  of  policy 
and  must  be  defended  as  such.  But  an  interfering 
government  is  ever  prone  to  consider  and  to  assert  that 
its  interference  in  favor  of  constitutionalism  or  legit- 
imacy is  an  intervention  justifiable  according  to  the 
principles  of  international  law. 

In  recent  decades,  when  absolutist  governments  have 
considered  themselves  fortunate  to  preserve  their  pos- 
sessions, the  liberal  states,  such  as  England,  and  more 
recently  the  United  States,  have  interfered  in  favor 
of  representative  institutions.70" 

When  Secretary  Knox  notified  the  Nicaraguan 
Charge  of  the  refusal  of  the  United  States  to  continue 
the  recognition  of  Zelaya  's  Government,  among  the  rea- 
sons given  in  the  note  of  December  1, 1909  (Foreign  Re- 
lations, 1909,  p.  455;  Cf.  Moore's  Principles  of  Di- 
plomacy, p.  266),  was:  "It  is  equally  a  matter  of  com- 
mon knowledge  that  under  the  regime  of  President 


7°'Stapleton  criticizing  Palmerston  says:  "In  speaking  of 
our  forcible  interference  in  the  affairs  of  Spain  and  Portugal 
in  1834,  he  [Palmerston]  observed,  'We  looked  upon  the  ques- 
tion, not  as  a  simple  choice  between  one  Sovereign  and  another, 
but  (as  it  was  in  reality)  absolute  government  on  the  one 
hand  and  constitutional  government  on  the  other;'  and  then 
having  argued  to  prove  that  constitutional  government  in  the 
Peninsula  was  advantageous  to  British  interests,  he  claimed 
great  merit  for  having  been  above  all  'narrow-minded  preju- 
dices' in  determining  'on  an  act  of  forcible  interference  for 
the  purpose  of  giving  those  countries  the  blessing  of  consti- 
tutional government.'  '  (A.  G.  Stapleton:  Intervention,  p. 
109-110.) 


INJUSTICE  151 

Zelaya  republican  institutions  have  ceased  in  Nica- 
ragua to  exist  except  in  name. "  It  is  only  fair  to  state 
that  this  was  but  a  part  of  the  description  of  intoler- 
able conditions  which  were  the  real  and  a  sufficient 
justification  for  the  intervention  of  the  United  States. 
President  Wilson  seems  to  have  gone  much  further, 
and  to  have  made  interference  to  preserve  constitution- 
alism a  basic  principle  of  his  administration.  Upon 
this  ground,  he  refused  to  recognize  General  Huerta 
when  he  was  de  facto  in  control  of  Mexico  City  and  a 
great  part  of  the  country.71  (Cf.  J.  B.  Moore,  Princi- 


71  The  recently  published  diplomatic  correspondence  rela- 
tive to  Mexican  affairs  in  1913  (Foreign  Relations,  1913,  p. 
692f.)  discloses  a  succession  of  acts  of  interference  by  the 
American  Government  in  the  internal  affairs  of  Mexico,  made 
necessary  by  the  peculiar  relations  between  the  two  states. 
But  the  action  of  President  Wilson  in  regard  to  outlawing  the 
Huerta  Government  was  unusually  drastic.  By  Secretary 
Bryan,  the  following  circular  instruction,  dated  November  7, 
1913,  was  sent  to  certain  of  the  American  diplomatic  repre- 
sentatives :  "While  the  President  feels  that  he  cannot  yet  an- 
nounce in  detail  his  policy  with  regard  to  Mexico,  nevertheless 
he  believes  that  be  ought,  in  advance  thereof,  to  make  known 
to  the  government  to  which  you  are  accredited  bis  clear  judg- 
ment that  it  is  his  immediate  duty  to  require  Huerta 's  retire- 
ment from  the  Mexican  Government,  and  that  the  Government 
of  the  United  States  must  now  proceed  to  employ  such  means 
as  may  be  necessary  to  secure  this  result;  that,  furthermore, 
the  Government  of  the  United  States  will  not  regard  as  bind- 
ing upon  the  people  of  Mexico  anything  done  by  Huerta  since 
his  assumption  of  dictatorial  powers,  nor  anything  that  may 
be  done  by  the  fraudulent  Legislature  which  he  is  about  to 
convoke.  The  President  hopes  that  the  government  to  which 
you  are  accredited  will  see  fit  to  use  its  influence  to  impress 
upon  Huerta  the  wisdom  of  retiring  in  the  interest  of  peace 
and  constitutional  government. 

' '  You  will  convey  the  foregoing  to  the  Minister  for  Foreign 
Affairs."  (Foreign  Relations,  1913,  p.  856.) 

The  Italian  Minister  for  Foreign  Affairs  considered  that 
"...  Huerta  was  no  worse  than  the  others  and  the  only  per- 
son in  sight  apparently  strong  enough  to  restore  order  of  some 
kind."  (Ibid,  p.  857.) 


152  INTERNATIONAL   POLICE 

pies  of  American  Diplomacy,  p.  213-238.  See  also  cor- 
respondence, Mexico,  in  Foreign  Relations,  1913). 
More  recently  the  Tinoco  Government  in  Costa  Rica 
was  regarded  as  beyond  the  pale,  apparently  because  it 
had  acquired  control  through  force  and  not  in  accord- 
ance with  constitutional  provisions  and  election.72 

Sir  Edward  Grey  was  informed  by  Ambassador  Page  that 
''he  might  consider  Huerta 's  elimination  certain,  the  ques- 
tion now  being:  Shall  he  be  eliminated  with  or  without  the 
moral  support  of  the  British  Government?  Sir  Edward's  last 
words  were  'It  is  a  very  grim  situation.'  '  (Ibid,  p.  857.) 
But  in  a  later  interview,  November  11,  (ibid,  p.  860),  Sir 
Edward  Grey  promised  to  instruct  Sir  Lionel  Garden,  the 
British  Minister,  that  if  Huerta  asked  for  British  aid  or 
showed  by  act  that  he  expected  it,  Garden  should  inform  him 
that  he  should  not  have  it,  but  ' '  Sir  Edward  stopped  short  at 
saying  that  without  such  act  or  request  from  Huerta  he  would 
instruct  Garden  to  take  the  initiative  in  approaching  him." 
(Ibid,  p.  860.) 

The  Government  of  Panama  replied,  that  "as  the  efforts  of 
President  Wilson  to  restore  constitutional  government  in  Mexi- 
co is  generous  and  noble,  the  Panaman  representative  has  been 
instructed  to  say  that  Panama  sympathizes  with  those  efforts. ' ' 
(Ibid,  p.  861.)  Some  other  Latin  American  countries  made  a 
favorable  response. 

72The  New  York  World  of  August  3,  1920,  printed  the  fol- 
lowing report  from  Washington :  ' '  The  United  States  has  ex- 
tended formal  recognition  to  the  present  Government  of  Costa 
Rica,  it  was  announced  to-day  by  the  State  Department.  On 
Jan.  27,  1917,  Federico  Tinoco  overthrew  the  constitutional 
Government  of  Costa  Rica,  forcing  President  Gonzalez  to  leave 
the  country.  The  United  States  refused  to  recognize -*the 
Tinoco  Government  on  the  ground  that  it  did  not  represent 
the  will  of  the  people.  In  August,  1919,  Tinoco  left  Costa 
Rica,  and  a  month  later  his  government  fell.  He  got  out  ahead 
of  the  crash. 

"After  the  constitutional  succession  was  reestablished  Julio 
Acosta  was  chosen  by  an  overwhelming  majority  and  was  in- 
augurated as  constitutional  President  on  May  8  of  this  year. 
In  making  the  announcement  Secretary  of  State  Colby  said : 

' '  '  President  Wilson 's  policy  has  been  completely  vindicated 
and  Costa  Rica  is  now  organized  in  accordance  with  the  prin- 
ciples laid  down  by  the  Government  of  the  United  States  when 
recognition  was  refused  to  the  Tinoco  regime.'  ' 


INJUSTICE  153 

Sir  Henry  Maine,  in  his  Lectures  on  International 
Law  (p.  63),  has  remarked  upon  the  tendency  to  inter- 
fere in  constitutional  affairs : 

"Before,  however,  the  European  peace  finally  broke 
up,  the  current  had  turned  in  the  other  direction ;  and 
Great  Britain,  whose  foreign  affairs  were  now  directed 
by  Lord  Palmerston,  employed  its  influence  to  assist 
states  which  desired  to  obtain  Constitutions.  In  ad- 
dition to  the  desire  for  popular  government  the  spirit 
of  nationality  had  now  come  into  play;  and  the  ulti- 
mate result  was  the  intervention  of  Napoleon  III  in 
Italy  and  the  destruction  of  the  Italian  despotisms. 
Therefore  all  the  Powers  in  Europe,  during  the  peace, 
did  in  turn  act  upon  principles  from  which  the  infer- 
ence might  be  drawn  that  they  denied  the  right  of  a 
state  under  certain  circumstances  to  adopt  what  politi- 
cal Constitution  it  pleases;  nevertheless,"  he  adds, 
' '  this  rule  of  law  in  the  long  run  prevailed. ' ' 

From  Professor  Lingelbach's  discussion  of  the  prin- 
ciples of  intervention,  we  quote  the  following  passage : 
"In  the  Quadruple  Treaty  of  183473  the  two  countries 
[Great  Britain  and  France]  guaranteed  their  aid 
against  Don  Carlos  and  Don  Miguel,  the  representa- 
tives of  the  reactionary  and  despotic  tendencies  in 
Spain  and  Portugal,  affording  a  striking  illustration 
of  how  these  two  states,  in  their  eagerness  to  support 
constitutionalism,  went  almost  as  far  in  interfering  in 
the  internal  affairs  of  other  states  as  did  Metternich 
himself.  The  claim  to  the  right  of  intervention  in  sup- 
port of  constitutionalism  must  rest  on  precisely  the 
same  principle  as  do  the  acts  of  the  Holy  Alliance." 
(W.  E.  Lingelbach:  The  Doctrine  and  Practice  of  In- 
tervention in  Europe,  Annals  of  the  American  Acad- 
emy of  Political  and  Social  Science,  1900,  vol.  XVI, 
p.  16.) 

"Professor  Lingelbach  refers  to  Hertslet,  vol.  II,  No.  171. 


154  INTERNATIONAL   POLICE 

What  is  politics  to-day  may  become  the  law  of  to- 
morrow, but  as  yet  there  is  under  international  law  no 
right  of  intervention  to  foster  or  to  impose  representa- 
tive institutions. 

FAVORED  TREATMENT  FOR  ALIENS 

In  many  instances  the  great  and  highly  civilized 
states  have  interposed  to  secure  for  their  nationals  a 
better  treatment  than  certain  backward  states  were  ac- 
cording their  own  nationals.  To  justify  this  course,  the 
theory  has  been  advanced  that  the  state  which  admits 
aliens  may  be  assumed  to  promise  and  guarantee  them 
those  rights  which  are  recognized  as  indispensable  for 
all  human  beings  in  civilized  states. 

Sir  Eoundell  Palmer  (later  Lord  Selborne)  ably 
stated  this  view  in  a  speech  on  the  * '  Greek  Massacre, ' ' 
which  he  delivered  in  the  House  of  Commons  May  20, 
1870:  "With  regard  to  all  Englishmen  travelling  in  a 
friendly  State  pretending  to  civilization,  we  have  a 
right  to  look  for  the  observance  and  the  enforcement 
by  that  State  of  the  principle  which  is  briefly  stated  by 
Chancellor  Kent,  in  his  *  Commentaries  on  Public  Law, ' 
where  he  says  '  that  when  foreigners  are  admitted  into 
a  State  upon  free  and  liberal  terms,  the  public  faith 
is  pledged  for  their  protection.'  That  does  not,  of 
course,  mean  that  an  exceptional  protection,  greater 
than  that  which  well-constituted  governments  ordinar- 
ily extend,  and  ought  to  extend  to  their  own  citizens,  is 
pledged  to  the  citizens  of  foreign  States;  but  it  does 
mean  that  those  foreigners  who  come  within  their  lim- 
its have  the  public  faith  pledged  to  them  for  the  protec- 
tion of  a  bond  fide  settled  government,  capable  of  re- 
pressing violence,  outrage,  and  crime,  in  that  manner 
and  in  that  degree  in  which  human  governments  in 
civilized  countries  ordinarily  are  capable  of  discharg- 


INJUSTICE  155 

ing  those  functions.  And  it  is  manifest  that  if  foreign- 
ers were  not  entitled  to  look  for  that  protection,  all  pos- 
sibility of  respecting  the  independent  territorial  sover- 
eignty of  foreign  States  would  be  at  an  end,  and  every 
nation  would  be  compelled  to  apply  its  own  power  for 
the  protection  of  its  own  citizens  in  foreign  countries. ' ' 
(Hansard,  vol.  201,  p.  1123,  quoted  by  Creasy:  First 
Platform  of  International  Law,  p.  307  and  336.) 

It  seems  hardly  fair  however  for  the  advocates  of  the 
theory  of  perfect  rights  and  absolute  independence  to 
destroy  the  child  of  their  imagination  by  creating  by 
implication  and  construction  an  undertaking  on  the 
part  of  an  independent  state  to  guarantee  to  aliens  ad- 
vantages which  it  is  unwilling  or  unable  to  accord  its 
own  citizens.  In  refutation  of  such  a  theory  and  in  de- 
fense of  the  right  of  sovereignty,  it  would  be  a  sufficient 
answer  to  quote  from  Secretary  of  State  Marcy's  in- 
structions of  April  6,  1855,  to  the  American  repre- 
sentative at  Vienna:  "The  system  of  proceeding  in 
criminal  cases  in  the  Austrian  government,  has,  un- 
doubtedly, as  is  the  case  in  most  other  absolute  coun- 
tries, many  harsh  features  and  is  deficient  in  many 
safeguards  which  our  laws  provide  for  the  security  of 
the  accused ;  but  it  is  not  within  the  competency  of  one 
independent  power  to  reform  the  jurisdiction  of  others, 
nor  has  it  the  right  to  regard  as  an  injury  the  appli- 
cation of  the  judicial  system  and  established  modes  of 
proceedings  in  foreign  countries  to  its  citizens  when 
fairly  brought  under  their  operation.  All  we  can  ask 
of  Austria,  and  this  we  can  demand  as  a  right,  is  that, 
in  her  proceedings  against  American  citizens  prose- 
cuted for  offences  committed  within  her  jurisdiction, 
she  should  give  them  the  full  and  fair  benefit  of  her 
system,  such  as  it  is,  and  deal  with  them  as  she  does 
with  her  own  subjects  or  those  of  other  foreign  powers. 
She  cannot  be  asked  to  modify  her  mode  of  proceed- 


156  INTERNATIONAL   POLICE 

ings  to  suit  our  views,  or  to  extend  to  our  citizens  all 
the  advantages  which,  her  subjects  would  have  under 
our  better  and  more  humane  system  of  criminal  juris- 
prudence." In  the  course  of  these  same  instructions, 
Marcy  said:  "That  feature  in  the  criminal  law  of 
Austria  which  interdicts  to  the  accused  under  arrest 
intercourse  and  free  communication  with  his  friends  is 
certainly  revolting  to  our  notions  of  justice  and  hu- 
mane treatment,  but  it  is  not  peculiar  to  that  govern- 
ment. Several  other  countries  in  Europe  have  the 
same  provision  in  their  system  of  criminal  law ...  I  am 
not  attempting  to  justify  the  Austrian  criminal 
code, . . . ;  but  condemnable  as  it  may  be,  we  have  not 
the  right  to  alter  or  suspend  it,  nor  can  we  convert  the 
fair  application  of  it  to  one  of  our  citizens  when 
brought  within  its  jurisdiction  into  an  international  of- 
fence."74 (Manuscript  instruction  given  in  Moore's 
Digest,  Vol.  VI,  p.  275.) 

74The  following  extract  from  Daniel  Webster's  report  to 
President  Fillmore  on  the  Thrasher  Case  expressed  the  same 
opinion,  although  that  case,  relating  to  the  right  of  a  citizen 
domiciled  abroad  to  the  interposition  of  his  government,  was 
not  directly  in  point.  The  Secretary  of  State  said : 

"Our  citizens  who  resort  to  countries  where  the  trial  by 
jury  is  not  known,  and  who  may  there  be  charged  with  crime, 
frequently  imagine,  when  the  laws  of  those  countries  are  ad- 
ministered in  the  forms  customary  therein,  that  they  are  de- 
prived of  rights  to  which  they  are  entitled,  and  therefore  may 
expect  the  interference  [interposition]  of  their  own  Govern- 
ment. But  it  must  be  remembered,  in  all  such  cases,  that  they 
have  of  their  own  free  will  elected  a  residence  out  of  their 
native  land,  and  preferred  to  live  elsewhere,  and  under  another 
government,  and  in  a  country  in  which  different  laws  prevail. 

' '  They  have  chosen  to  settle  themselves  in  a  country  where 
jury  trials  are  not  known;  where  representative  government 
does  not  exist ;  where  the  privilege  of  the  writ  of  habeas  cor- 
pus is  unheard  of,  and  where  judicial  proceedings  in  criminal 
cases  are  brief  and  summary.  Having  made  this  election  they 
must  necessarily  abide  its  consequences.  No  man  can  carry  the 


INJUSTICE  157 

Without  contradicting  Marcy's  correct  statement  of 
the  legal  principle  under  international  law,  Elihu  Root 
is  the  authority  for  a  statement  of  the  right  of  aliens 
to  a  favored  treatment  in  the  exceptional  circumstances 
which  we  are  considering.  In  his  Presidential  Address 
before  the  tenth  meeting  of  the  American  Society  of 
International  Law,  in  the  course  of  his  discussion  of 
"The  Basis  of  Protection  to  Citizens  Residing 
Abroad,"  Mr.  Root  said: 

"There  is  a  standard  of  justice,  very  simple,  very 
fundamental,  and  of  such  general  acceptance  by  all 
civilized  countries  as  to  form  a  part  of  the  international 
law  of  the  world.  The  condition  upon  which  any 
country  is  entitled  to  measure  the  justice  due  from 
it  to  an  alien  by  the  justice  which  it  accords  its  own 
citizens  is  that  its  system  of  law  and  administration 
shall  conform  to  this  general  standard.  If  any  coun- 
try's system  of  law  and  administration  does  not  con- 
form to  that  standard,  although  the  people  of  the  coun- 
try may  be  content  or  compelled  to  live  under  it,  no 
other  country  can  be  compelled  to  accept  it  as  furnish- 
ing a  satisfactory  measure  of  treatment  to  its  citizens. 
In  the  famous  Don  Pacifico  case,  Lord  Palmerston 
said,  in  the  House  of  Commons : 

"  'If  our  subjects  abroad  have  complaints 
against  individuals  or  against  the  government  of  a 
foreign  country,  if  the  courts  of  law  of  that  country 
can  afford  them  redress,  then,  no  doubt,  to  those 
courts  of  justice  the  British  subject  ought  in  the 
first  instance  to  apply ;  and  it  is  only  on  a  denial  of 
justice,  or  upon  decisions  manifestly  unjust,  that 
the  British  Government  should  be  called  upon  to  in- 

aegis  of  his  national  American  liberty  into  a  foreign  country, 
and  expect  to  hold  it  up  for  his  exemption  from  the  dominion 
and  authority  of  the  laws  and  the  sovereign  power  of  that 
country,  unless  he  be  authorized  to  do  so  by  virtue  of  treaty 
stipulations."  (Moore's  Digest,  vol.  II,  p.  88.) 


158  INTERNATIONAL   POLICE 

terfere.  But  there  may  be  cases  in  which  no  con- 
fidence can  be  placed  in  the  tribunals,  those  tri- 
bunals being,  from  their  composition  and  nature, 
not  of  a  character  to  inspire  any  hope  of  obtaining 
justice  from  them.  It  has  been  said:  "We  do 
not  apply  this  rule  to  countries  whose  govern- 
ments are  arbitrary  or  despotic,  because  there  the 
tribunals  are  under  the  control  of  the  government, 
and  justice  cannot  be  had;  and,  moreover,  it  is 
not  meant  to  be  applied  to  nominally  constitutional 
governments,  where  the  tribunals  are  corrupt." 

"  'I  say,  then,  that  our  doctrine  is,  that,  in  the 
first  instance,  redress  should  be  sought  from  the 
law  courts  of  the  country ;  but  that  in  cases  where 
redress  cannot  be  so  had — and  those  cases  are 
many — to  confine  a  British  subject  to  that  remedy 
only,  would  be  to  deprive  him  of  the  protection 
which  he  is  entitled  to  receive 

11  'We  shall  be  told,  perhaps,  as  we  have  already 
been  told,  that  if  the  people  of  the  country  are 
liable  to  have  heavy  stones  placed  upon  their 
breasts,  and  police  officers  to  dance  upon  them; 
if  they  are  liable  to  have  their  heads  tied  to  their 
knees,  and  to  be  left  for  hours  in  that  state ;  or  to 
be  swung  like  a  pendulum,  and  to  be  bastinadoed 
as  they  swing,  foreigners  have  no  right  to  be  bet- 
ter treated  than  the  natives  and  have  no  business 
to  complain  if  the  same  things  are  practiced  upon 
them.  We  may  be  told  this,  but  that  is  not  my 
opinion,  nor  do  I  believe  it  is  the  opinion  of  any 
reasonable  man. ' 

"Nations  to  which  such  observations  apply  must  be 
content  to  stand  in  an  intermediate  position  between 
those  incapable  of  maintaining  order,  and  those  which 
conform  fully  to  the  international  standard.'"5  (Pro- 

7S' '  It  is  very  desirable, ' '  said  Mr.  Root, ' '  that  people  who  go 
into  other  countries  shall  realize  that  they  are  not  entitled  to 
have  the  laws  and  police  regulations  and  methods  of  judicial 
procedure  and  customs  of  business  made  over  to  suit  them,  or 
to  have  any  other  or  different  treatment  than  that  which  is 
accorded  to  the  citizens  of  the  country  into  which  they  have 


INJUSTICE  159 

ceedings  of  the  American  Society  of  International  Law, 
1910,  p.  21-2.) 

If  we  accept  Mr.  Boot's  statement — and  how  can  we 
do  otherwise — the  difficulty  disappears.  The  conse- 
quence of  this  rule  is  that  the  law  of  nations  is  recog- 
nized supreme,  and  requires  every  state  that  would  pre- 
serve its  independence  to  remove  the  grounds  which, 
under  the  supreme  law  of  nations,  would  justify  an  in- 
tervention.76 

If  space  would  permit,  we  might  amplify  this  dis- 
cussion, but  this  is  unnecessary  if  the  reader  is  con- 
vinced that:  In  accordance  with  the  principles  of  in- 
ternational law,  every  state  is  required  to  police  its 
own  territory  in  such  a  manner  as  to  secure  for  all  its 
inhabitants,  nationals  as  well  as  aliens,  a  reasonable 
protection  and  the  enjoyment  of  a  minimum  of  rights, 
recognized  by  that  law  as  absolutely  indispensable  for 


gone;  so  long  as  the  government  of  that  country  maintains, 
according  to  its  own  ideas  and  for  the  benefit  of  its  own  citi- 
zens, a  system  of  law  and  administration  which  does  not  vio- 
late the  common  standard  of  justice  that  is  a  part  of  inter- 
national law;  and  so  long  as,  in  conformity  with  that 
standard,  the  same  rights,  the  same  protection,  and  the  same 
means  of  redress  for  wrong  are  given  to  them  as  are  given  to 
the  citizens  of  the  country  where  they  are. ' '  ( See  Elihu  Root, 
in  Proceedings  of  the  American  Society  of  International  Law, 
1910,  p.  26.) 

76The  defenders  of  the  theory  of  perfect  rights  and  absolute 
independence  may  avoid  this  horn  of  the  dilemma  by  recog- 
nizing that  the  states  which  do  not  observe  this  requirement 
are  in  a  separate  class  of  partially  sovereign  states,  but  if  this 
theory  should  be  adopted,  it  would  then  be  necessary  to  make 
constant  modifications  in  the  list  of  states  completely  inde- 
pendent, for  any  state  against  which  a  justifiable  intervention 
upon  this  ground  took  place  would  have  to  be  dropped.  This 
second  horn  of  the  dilemma  is  no  less  painful  than  the  first. 


160  INTERNATIONAL   POLICE 

all  civilized  human  beings."    The  failure  to  meet  this 
obligation  is  a  delinquency  which  justifies  interposition 

"Borchard:  Diplomatic  Protection,  p.  13-14;  14  notes  1, 
and  2. 

Discussing  the  justification  for  the  protection  of  nationals 
in  other  states,  W.  E.  Hall  (Foreign  Jurisdiction  of  the  Brit- 
ish Crown,  §  5)  declares  that  this  interposition,  although  he 
does  not  use  this  term,  "...  gives  the  means  of  guarding  them 
against  the  effect  of  unreasonable  laws,  of  laws  totally  out  of 
harmony  with  the  nature  or  decree  of  civilization  by  which 
a  foreign  power  affects  to  be  characterized,  and  finally  of  an 
administration  of  the  laws  bad  beyond  a  certain  point.  When 
in  these  directions  a  state  grossly  fails  in  its  duties ;  when  it  is 
either  incapable  of  ruling,  or  rules  with  patent  injustice,  the 
right  of  protection  emerges  in  the  form  of  diplomatic  remon- 
strance, and  in  extreme  cases  of  ulterior  measures. ' ' 

Secretary  Bayard,  in  his  instruction  of  August  24,  1886,  to 
the  American  Minister  to  Peru,  relative  to  the  killing  by 
government  troops  of  an  American  non-combatant,  Owen 
Young,  in  violation  of  the  law  of  war,  wrote :  "It  cannot  be 
admitted  that  in  every  case  the  rights  of  a  foreigner  in  that 
country  [Peru]  may  be  measured  by  the  extent  of  the  pro- 
tection to  person  and  property  which  a  citizen  might  obtain. 
In  times  of  civil  conflict ....  it  not  infrequently  happens  that 
citizens  of  a  country  are  compelled  to  endure  injuries  which 
would  afford  ample  basis  for  international  intervention  [inter- 
position], if  they  were  inflicted  on  a  foreigner."  (Moore's 
Digest,  Vol.  VI,  p.  252 ;  cf.  p.  759.)  Without  the  qualification 
relative  to  the  extreme  case  of  a  civil  war,  this  would  be  a 
good  statement  of  the  rule  of  law  as  exemplified  by  practice. 

Professor  Eugene  Wambaugh,  in  a  carefully  prepared  ad- 
dress on  "The  Place  of  Denial  of  Justice  in  the  Matter  of 
Protection"  (Proceedings  of  the  American  Society  of  Inter- 
national Law,  1910,  pp.  126-137)  gives  the  rules  which  he  con- 
siders to  constitute  good  practice,  the  second  of  which  reads : 
"The  alien  is  entitled  to  no  more  enlightened  procedure  than 
is  accorded  to  the  citizen,  unless  that  procedure  is  so  cruel  or 
unjust  as  to  lose  the  right  to  be  termed  judicial,"  which 
amounts  to  saying  that  the  alien  does  have  a  right  to  a  favored 
treatment  when  the  procedure  is  so  cruel  or  unjust  that  it  can 
no  longer  be  rightfully  termed  judicial. 

We  have  seen  above  ( p.  80-81 )  how  the  French  Government 
insisted  that  French  Jews  in  Switzerland  should  be  exempted 
from  the  disabilities  and  discriminations  then  imposed  by 
Switzerland  upon  her  own  Jews. 


INJUSTICE  161 

of  the  alien's  government  to  secure  redress.  The 
natives  of  the  delinquent  state,  when  they  are  subjected 
to  abuse,  are  expected  to  revolt  and  establish  a  govern- 
ment able  to  maintain  them  in  their  rights,  and  it  is 
only  exceptionally  that  other  states  may  be  expected 
to  intervene  to  help  them  to  obtain  their  rights. 

Interposition  to  secure  a  privileged  treatment  or 
status  for  aliens  brings  out  in  bold  relief  the  obligation 
of  every  state  to  accord  a  minimum  of  rights  to  all 
those  under  its  jurisdiction,  and  when  the  failure  to 
fulfil  this  obligation  in  so  far  as  concerns  its  own 
nationals  causes  a  misery  which  shocks  public  opinion 
in  neighboring  states,  it  leads  to,  and  affords  a  justi- 
fication for  humanitarian  intervention. 

Unless  this  obligation  we  have  been  considering  were 
a  part  of  the  law  of  nations,  it  would  not  be  logical  for 
another  state  to  demand  for  its  own  citizens  a  better 
treatment  than  could  be  secured  by  the  natives.  There 
is  something  so  patently  unjust  about  the  claim  to  ex- 
act for  aliens  a  better  treatment  than  for  those  who 
possess  the  territory  that  some  writers  have  wished  to 
apply  the  principle  of  national  treatment  to  all  foreign- 
ers who  enter  the  territory  voluntarily,  but  they  fail 
to  perceive  that  the  state  which  sinks  below  a  certain 
standard  is  only  allowed  to  maintain  its  precarious 
independence  upon  the  condition  that  at  least  it  live 
up  to  its  international  obligations  to  the  degree  of  pro- 
tecting aliens  in  the  enjoyment  of  a  minimum  of  se- 
curity to  their  lives  and  property.  The  great  states 
are  constantly  exerting  pressure  to  maintain  their 
nationals  in  the  enjoyment  of  this  minimum,  but  they 
are  sometimes  restrained  from  action  by  their  own 
political  embarrassment  or  a  belief  that  the  govern- 
ment of  the  state  in  question  is  unable  to  secure  for 
their  nationals  the  minimum  they  are  entitled  to  de- 
mand. In  this  latter  event,  there  arises  a  just  ground 
11 


162  INTERNATIONAL   POLICE 

for  intervention  by  way  of  self-help  to  secure  the  pro- 
tection which  is  due,  and  this  serious  step  usually  leads 
to  annexation  or  the  extension  of  some  form  of  super- 
vision over  the  backward  state. 

Interposition  to  secure  a  favored  treatment  for 
aliens  has  shown  how  clearly  international  law  recog- 
nizes the  obligation  of  every  government  to  administer 
justice  in  so  far  as  is  reasonably  possible  under  the  cir- 
cumstances. Those  states  that  are  not  able  to  guaran- 
tee the  irreducible  minimum  to  their  own  citizens  are 
required  to  do  so  in  the  case  of  aliens  or  else  to  confess 
that  they  are  not  entitled  to  rank  as  independent  states 
fulfilling  the  obligations  of  international  law. 

TREATMENT  OF  ABORIGINES 

The  concurrent  and  cooperative  representations  of 
Great  Britain  and  the  United  States  to  the  Belgian 
Government  (1906-09)  in  behalf  of  the  aborigines  of 
the  Kongo  constitute  one  of  the  most  remarkable  in- 
stances of  humanitarian  intervention. 

On  December  2,  1905,  Mr.  Henry  Lane  Wilson,  the 
American  Minister  at  Brussels,  transmitted  to  the  Sec- 
retary of  State,  then  the  Honorable  Elihu  Root,  a  copy 
of  "La  Verite  sur  le  Kongo,"  "containing,"  as  Mr. 
Wilson  said  "...  a  resume  in  the  English  language  of 
the  report  of  the  special  commission  to  investigate  the 
administration  of  King  Leopold  in  the  Kongo. "  "  The 
report,"  states  Mr.  Wilson,  "seems  to  be  made  in  a 
spirit  of  perfect  fairness,  and  the  findings  of  the  com- 
mission will  doubtless  be  accepted  as  unprejudiced  and 
just  conclusions." 

A  mere  reading  of  this  report  without  any  knowl- 
edge of  the  facts  justifies  the  favorable  impression 
which  it  had  created  upon  the  American  Minister.  It 
recognized  certain  inevitable  abuses  which  must  occur 


INJUSTICE  163 

in  any  organization  such  as  that  of  the  Kongo.  It 
justified  the  necessity  for  enforced  labor  to  compel  the 
payment  of  taxes,  and  it  congratulated  the  adminis- 
tration on  its  humanitarian  action  in  refraining  from 
supplying  alcohol  to  the  natives  who  "  would  have  over- 
come their  innate  laziness  in  order  to  procure  it." 
(Foreign  Eelations,  1905,  p.  88.) 

Reference  was  made  to  the  favorable  opinion  of 
* '  Messrs.  Stapleton  and  Millman,  two  missionaries  set- 
tled in  the  Falls  district,"  who  declared  that  "they 
were  perfectly  satisfied  with  the  moral  and  material 
condition  of  the  country."  The  prevalence  of  certain 
barbaric  customs,  such  as  the  mutilation  of  the  dead, 
was  remarked  upon,  but  the  administration  of  the 
Kongo  was  praised  for  its  efforts  to  eradicate  these 
abuses,  and  for  its  success  in  repressing  the  ravages  of 
the  Arab  slave  dealers.  The  report  stated  that  "the 
obligation  to  work,  if  not  excessive,  and  if  applied  in  a 
paternal  and  equitable  way,  violence  being  always  omit- 
ted, will  be  an  efficient  manner  to  civilize  and  transform 
the  native  population."  (Ibid,  p.  92.) 

On  February  20,  1906,  Secretary  Boot,  in  reply  to  a 
letter  which  he  had  received  from  Mr.  Denby  relative 
to  the  treatment  of  the  natives  of  the  Kongo,  declared : 
" . . .  the  United  States  has  no  treaty  right  of  inter- 
vention. We  could  not  rightfully  summon  or  partici- 
pate in  any  international  conference  looking  to  inter- 
vention, adjudication,  or  enforcement  of  a  general  ac- 
cord by  other  African  powers  against  the  Kongo 
State. ' '  ( Foreign  Relations,  1906,  Part  I,  p.  88-9. ) 

The  Belgian  Minister  at  Washington  cabled  his  Gov- 
ernment a  summary  of  Mr.  Root's  letter,  and  shortly 
thereafter,  the  American  Minister  at  Brussels  notified 
his  Government  of  the  satisfaction  which  the  letter 
above  referred  to  had  afforded  the  Belgian  Govern- 
ment. In  his  report,  Mr.  Wilson  said :  ' '  The  full  text 


164  INTERNATIONAL   POLICE 

has  been  printed  by  almost  every  respectable  news- 
paper in  Belgium,  and  the  editorial  comments  have 
been  uniformly  expressive  of  high  appreciation  and 
approval  of  the  position  assumed  by  Mr.  Root. 

* '  I  inclose  a  copy  and  translation  of  an  editorial  ex- 
cerpt from  Independence  Beige,  the  leading  daily  paper 
of  Brussels,  and  also  a  translation  of  a  part  of  an 
article  by  Kurt  Wolff  in  the  German  magazine  Handel 
und  Industrie,  bearing  upon  the  subject  treated  by 
Mr.  Root  in  his  letter  to  Mr.  Denby. 

"The  Kongo  Government  are  greatly  pleased  with 
the  attitude  of  the  United  States,  as  outlined  by  Mr. 
Root,  as  it  has  recently  had  to  meet  attacks  not  only 
from  foreign  sources,  but  also  from  Belgium.  It  has 
issued  a  pamphlet  in  English  containing  Mr.  Root's 
letter,  and  has  had  the  same  translated  into  French 
and  German."  (Foreign  Relations,  1906,  Part  I,  p. 
94.) 

A  few  months  after  this,  on  April  12,  1906,  Senator 
Morgan  presented  an  appeal  to  Congress  from  the 
Kongo  Reform  Association  on  behalf  of  the  natives 
of  the  Kongo,  which  was  printed  and  distributed  as  a 
Senate  Document  (No.  316,  29th  Congress,  1st  Ses- 
sion). To  this  were  annexed  a  number  of  statements 
from  missionaries  in  the  Kongo  State  and  affidavits 
purporting  to  reproduce  the  evidence  which  certain 
witnesses  had  already  given  before  the  Commission  of 
Inquiry  appointed  by  King  Leopold,  which  evidence, 
notwithstanding  the  ex  parte  character  of  the  Commis- 
sion the  Kongo  Government  had  "failed  to  make  ac- 
cessible to  the  public  and  to  other  governments"  (Ibid, 
p.  2).  The  evidence  submitted  was  of  a  nature  to  show 
that  the  aborigines  of  the  Kongo  engaged  in  collecting 
rubber  had  been  subjected  to  a  barbarous  treatment  in 
order  to  terrorize  them  into  bringing  in  the  required 


INJUSTICE  165 

supplies  of  rubber.78  The  appeal  of  the  Kongo  Eef  orm 
Association,  signed  by  a  distinguished  and  philan- 
thropic group  of  citizens,79  urged  the  necessity  of  in- 
ternational action.  The  report  declared : 

".With  reference  to  the  condition  thus  disclosed  we 
would  respectfully  urge  that  international  action  is  a 
necessity.  The  Kongo  Government  evidently  is  dis- 
qualified for  dealing  satisfactorily  with  the  existing 
situation,  in  view  of  its  alleged  responsibility  for  the 
wrongs  reported,  and  of  its  acknowledged  commitment 
to  maintenance  of  the  system  of  territorial  monopoli- 
zation to  which  it  is  declared  these  wrongs  are  directly 
traceable."  (Senate  Document  316,  p.  2.) 

While  it  was  admitted  that  the  United  States  did  not 
"share  the  supervisory  powers  belonging  to  the  signa- 
tories of  the  General  Act  of  the  Berlin  conference,"  it 
was,  the  appeal  declared,  " . .  .equally  clear. .  "  that  the 
attitude  taken  by  the  United  States  permitted  it  with 
perfect  propriety  to  "...  suggest  to  the  powers  the 
importance  of  meeting  again  for  consideration  of  the 
grave  reports  now  current, . .  "  As  regards  the  powers 
and  obligations  of  the  United  States  under  the  Brus- 
sels act,  the  Committee  pointed  out  that  the  Brussels 
conference  "represented  a  joint  cooperative  effort  for 
relief  of  conditions  in  the  Kongo  territory.  While  deal- 
ing primarily  with  measures  for  'repression  of  the 
African  slave  trade,'  it  was  animated  by  a  purpose  of 

78See  Senate  Document  No.  316,  p.  6-30 ;  also  report  of  the 
American  Consul-General  at  Boma,  Senate  Document  No.  147, 
61st  Congress,  1st  Session,  p.  35-40. 

79The  names  of  the  signers  who  honored  their  country  and 
themselves  by  their  appeal  were :  G.  Stanley  Hall,  Samuel  B. 
Capen,  Benjamin  F.  Trueblood,  John  R.  Gow,  Wm.  E.  Hunt- 
ington,  Herbert  S.  Johnson,  Frederick  B.  Allen,  Edward  H. 
Clement,  Edward  M.  Hartwell,  Thomas  Lacey,  Charles  F. 
Dole,  Edward  W.  Capen,  Edwin  D.  Mead,  Everett  D.  Burr, 
Charles  Fleischer,  Thomas  S.  Barbour;  Hugh  P.  McCormick 
( Corresponding  Secretary ) . 


166  INTERNATIONAL   POLICE 

larger  scope  disclosed  by  the  declaration  of  its  aim  of 
'effectively  protecting  the  original  population  of 
Africa  and  securing  for  this  vast  continent  the  bene- 
fits of  peace  and  civilization. '  (Ibid,  p.  3.)  All  the 
powers  were  alike  committed,  in  the  opinion  of  the 
Committee,  "to  the  cooperative  purpose  represented 
by  the  conference,"  (Ibid,  p.  3)  and  amongst  them 
the  United  States  since  it  was  a  signatory  of  the  Gen- 
eral Act  of  Brussels.  The  appeal  of  the  Committee 
continues : 

"We  recall  that  the  President  of  the  United  States, 
in  making  publication  of  the  General  Act  of  Brussels, 
states  that  it  was  duly  ratified,  together  with  the  pro- 
tocol of  January  2,  by  the  United  States  Government, 
and  adds  that  the  Act  is  "made  public  to  the  end  that 
the  same,  and  every  article  and  clause  thereof,  may  be 
observed  and  fulfilled  with  good  faith  by  the  United 
States  and  the  citizens  thereof. 

"We  would  urge  that  under  the  General  Act  of  Brus- 
sels our  government  is  entitled  to  suggest  to  the  pow- 
ers the  propriety  and  importance  of  instituting  an  in- 
quiry to  determine  whether  the  government  of  the 
Kongo  State,  by  its  permission  of  conditions  repro- 
ducing the  worst  horrors  of  the  slave  trade,  is  not  in 
violation  of  the  spirit,  and  of  certain  specific  engage- 
ments, of  its  agreement  under  the  Act  of  Brussels; 
and  that  it  may  inquire  further  whether  the  system  of 
monopolization  of  territory  and  products  maintained 
and  enforced  by  the  Kongo  Government  is  not  itself 
fatally  hostile  to  the  discharge  of  the  engagements  con- 
tracted by  that  Government  in  the  Act  of  Brussels  and 
thus  fatal  to  the  purpose  of  the  powers  as  represented 
by  that  Act.  It  would  further  appear  that  our  govern- 
ment, having  the  power,  is  under  obligation  to  take  this 
course  in  view  of  the  extreme  gravity  of  current  re- 
ports. 


INJUSTICE  167 

"It  is  noteworthy  that  in  its  treaty  with  the  Kongo 
State  our  Government  makes  mention  of  the  obliga- 
tions which  that  state  has  contracted  by  virtue  of  the 
Act  of  Brussels  and  indicates  its  desire  to  facilitate 
discharge  of  these  obligations.  (Art.  X.)"  (Senate 
Document  316,  p.  4.) 

After  stating  what  were  considered  to  be  viola- 
tions of  the  rights  of  commerce  granted  to  American 
citizens  by  the  treaties  with  the  Kongo  State,  the  Com- 
mittee expressed  in  the  following  words  its  belief  in 
the  justification  of  humanitarian  intervention  on  the 
part  of  the  United  States:  "It  is  apparent  that  yet 
another  form  of  action  is  open  to  our  government, 
which  has  certain  rights  by  virtue  of  its  membership  in 
the  family  of  nations.  The  reserved  right  belonging  to 
individuals  and  nations  to  protest  against  iniquity  and 
to  intervene  for  the  protection  of  helpless  victims 
of  oppression  is  inalienable  with  our  government." 
(Ibid,  p.  4.) 

They  further  drew  attention  to  the  advantage  which 
the  United  States  derived  from  its  disinterested  situa- 
tion :  l l  The  position  of  our  government,  as  defined  by 
its  relation  to  the  conferences,  would  seem  to  give  us  a 
unique  advantage,  in  that  we  have  conspicuously  de- 
clined to  accept  any  form  of  political  benefit  in  this 
territory,  and  may,  therefore,  act  for  the  protection  of 
its  people  without  suspicion  of  other  than  high  and 
generous  motives.  We  recall  that  in  entering  the  con- 
ference at  Berlin  our  representative,  Mr.  Terrell,  said : 

"  'The  Government  of  the  United  States  has 
wished  to  show  the  great  interest  and  deep  sym- 
pathy it  feels  in  the  great  work  of  philanthropy 
which  the  conference  seeks  to  realize.  Our  country 
must  feel  beyond  all  others  an  immense  interest 
in  the  work  of  this  assembly. '  ' '  (Senate  Document 
316,  p.  5.) 


168  INTERNATIONAL   POLICE 

The  Committee  also  quoted  the  following  words  of  a 
prominent  member  of  the  Conference,  relative  to  the 
cooperation  of  the  United  States: 

"We  attach  the  highest  value  to  the  cooperation 
of  the  United  States  in  our  work.  We  know  that 
their  traditional  policy  is  to  stand  aloof  from  the 
treaties  and  political  arrangements  of  European 
nations,  but  the  work  which  we  are  carrying  on  is 
purely  humanitarian ;  its  only  object  is  the  extinc- 
tion of  the  slave  trade  and  the  improvement  of  the 
negro's  lot,  an  object  for  which  the  United  States 
has  so  often  poured  out  blood  and  treasure." 
(Ibid,  p.  5.) 

The  Committee  concluded:  "With  an  unfaltering 
confidence  that  the  action  taken  by  our  Government 
will  be  in  accord  with  these  generous  sentiments,  and 
that  through  it  this  people,  disfranchised  of  the  sacred 
right  of  life,  liberty,  and  the  pursuits  of  happiness, 
may  rise  at  length  from  their  low  estate  to  that  place  in 
the  commonwealth  of  nations  for  which  development 
under  a  just  rule  may  fit  them,  our  communication  is 
respectfully  submitted."  (Senate  Document  316,  p. 
5.) 

It  would  seem  that  the  carefully  gathered  testimony 
of  this  distinguished  group  of  philanthropists,  and  the 
incontrovertible  statement  of  the  principles  which  they 
set  forth  as  a  basis  for  the  action  of  the  United  States, 
must  have  influenced  Secretary  Root,  for  not  long 
after,  he  completely  changed  the  attitude  he  had  previ- 
ously taken,  when  in  reply  to  Mr.  Denby  he  refused  to 
intervene  (see  above),  and  on  December  10,  1906,  he 
sent  the  following  instructions  to  the  American  Charge 
at  London:  "Moved  by  the  deep  interest  shown  by 
all  classes  of  the  American  people  in  the  amelioration 
of  conditions  in  the  Kongo  State,  the  President  has  ob- 
served with  keen  appreciation  the  steps  which  the 
British  Government  is  considering  toward  that  hu- 


INJUSTICE  169 

manitarian  end.  You  will  say  so  to  Sir  Edward  Grey, 
inviting  from  him  such  information  as  to  the  course 
and  scope  of  the  action  which  Great  Britain  may  con- 
template under  the  provisions  of  the  General  Act  of 
the  Kongo  and  in  view  of  the  information  which  the 
British  Government  may  have  acquired  concerning  the 
conditions  in  Central  Africa,  and  you  will  further  ex- 
press to  Sir  Edward  Grey  the  desire  of  the  President 
to  contribute  by  such  action  and  attitude  as  may  be 
properly  within  his  power  toward  the  realization  of 
whatever  reforms  may  be  counseled  by  the  sentiments 
of  humanity  and  by  the  experience  developed  by  the 
past  and  present  workings  of  Kongo  administration. 
The  President's  interest  in  watching  the  trend  toward 
reform  is  coupled  with  the  earnest  desire  to  see  the  full 
performance  of  the  obligation  of  articles  2  and  5  of  the 
General  Africa  slave-trade  Act  of  Brussels  of  July 
2,  1890,  to  which  the  United  States  is  a  party,  in  all 
that  affects  involuntary  servitude  of  the  natives."80 
(Foreign  Relations,  1907,  Part  II,  p.  793.) 

80The  powers  intervening  for  the  protection  of  the  Abo- 
rigines in  the  Kongo  district  principally  relied  on  articles  2 
and  5  of  the  Brussels  act.  Article  5  related  to  the  punish- 
ment of  persons  taking  part  in  the  capture  of  slaves,  the  per- 
petrators of  the  mutilation  of  adults  and  male  infants,  and  the 
organizers  and  abettors  of  man-hunts.  Article  2  of  the  Brus- 
sels Act,  more  frequently  referred  to,  reads  as  follows : 

"The  stations,  the  cruisers  organized  by  each  Power  in  its 
inland  waters,  and  the  posts  which  serve  as  ports  for  them 
shall,  independently  of  their  principal  task,  which  is  to  pre- 
vent the  capture  of  slaves  and  intercept  the  routes  of  the  Slave 
Trade,  have  the  following  subsidiary  duties : 

"1.  To  serve  as  a  base  and,  if  necessary,  as  a  place  of  refuge 
for  the  native  populations  placed  under  the  sovereignty  or  the 
protectorate  of  the  State,  to  which  the  station  belongs,  for  the 
independent  populations,  and  temporarily  for  all  others  in 
case  of  imminent  danger ;  to  place  the  populations  of  the  first 
of  these  catagories  in  a  position  to  cooperate  for  their  own  de- 
fence; to  diminish  intestine  wars  between  tribes  by  means  of 
arbitration ;  to  initiate  them  in  agricultural  works  and  in  the 


170  INTERNATIONAL   POLICE 

On  February  15,  1907,  the  Senate  adopted  the  fol- 
lowing resolution  introduced  by  Senator  Lodge : 

"Whereas  it  is  alleged  that  the  native  inhabitants 
of  the  Basin  of  the  Kongo  have  been  subjected  to  in- 
human treatment  of  a  character  that  should  claim  the 
attention  and  excite  the  compassion  of  the  people  of 
the  United  States :  Therefore,  be  it 

"Resolved,  That  the  President  is  respectfully  ad- 
vised that  in  case  he  shall  find  that  such  allegations 
are  established  by  proof,  he  will  receive  the  cordial 
support  of  the  Senate  in  any  steps,  not  inconsistent 
with  treaty  or  other  international  obligations,  or  with 
the  traditional  American  foreign  policy  which  forbids 
participation  by  the  United  States  in  the  settlement  of 
political  questions  which  are  entirely  European  in  their 
scope,  he  may  deem  it  wise  to  take  in  cooperation  with 
or  in  aid  of  any  of  the  powers  signatories  of  the  treaty 
of  Berlin  for  the  amelioration  of  the  conditions  of  such 
inhabitants."  (Foreign  Relations,  1907,  Part  II,  p. 
806-7.) 

The  gravamen  of  the  charge  against  the  Kongo  au- 
thorities, as  summed  up  in  the  American  memorandum 


industrial  arts  so  as  to  increase  their  welfare ;  to  raise  them  to 
civilization  and  bring  about  the  extinction  of  barbarous  cus- 
toms, such  as  cannibalism  and  human  sacrifices. 

"2.  To  give  aid  and  protection  to  commercial  undertakings ; 
to  watch  over  their  legality,  especially  by  controlling  contracts 
of  service  with  natives;  and  to  lead  up  to  the  foundation  of 
permanent  centers  of  cultivation  and  of  commercial  estab- 
lishments. 

"3.  To  protect,  without  distinction  of  creed,  the  Missions 
which  are  already  or  may  hereafter  be  established. 

"4.  To  provide  for  the  sanitary  service,  and  to  grant  hos- 
pitality and  help  to  explorers  and  to  all  who  take  part  in 
Africa  in  the  work  of  repressing  the  Slave  Trade. ' ' 

The  General  Act  of  the  Conference  of  Berlin  of  February 
26,  1885,  also  made  provision  for  the  protection  of  the  aborig- 
ines of  the  region  in  question,  but  since  the  United  States  had 
not  become  a  party  to  the  Berlin  Act,  it  based  its  action  upon 
the  articles  of  the  Brussels  Act. 


INJUSTICE  171 

of  a  later  date  (April  7,  1908),  was  as  follows:  "The 
dissatisfaction  with  the  present  administration  of  the 
Kongo  has  grown  very  largely  out  of  its  policy  toward 
the  native  races —  a  policy  which  was  doubtless  not  in- 
tentionally cruel  nor  purposely  at  variance  with  the 
acts  of  Brussels  and  Berlin,  but  which,  in  the  opinion 
of  competent  investigators,  is  enslaving,  degrading, 
and  decimating  the  native  population.  It  may  be  ad- 
mitted that  there  has  been  much  exaggeration  of  the 
true  condition  of  affairs  and  that  many  charges  have 
been  refuted,  but  the  fact  nevertheless  remains  that 
conditions  prevail  which  were  neither  contemplated 
nor  anticipated  when  the  Independent  Kongo  State 
was  called  into  existence  by  the  powers."  (Foreign 
Eelations,  1908,  p.  560.) 

The  testimony  of  the  acts  of  brutality  which  aroused 
public  opinion  and  evoked  official  protest  was  disclosed 
in  the  official  reports  published  by  the  British  and 
American  Governments.  It  confirmed  the  statements  in 
the  appeal  of  the  Kongo  Reform  Association.  This 
evidence  showed  the  extreme  cruelty  and  injustice  of 
the  treatment  of  the  natives,  who  were  compelled,  under 
the  severest  penalties  to  bring  in  a  certain  amount  of 
rubber  as  a  payment  of  taxes.81 


81See  the  testimony  published  in  Senate  Document  No.  316, 
59th  Congress,  1st  Session,  and  Senate  Document  No.  147,  61st 
Congress,  1st  session,  and  in  Foreign  Relations,  1908. 

Consul  General  Smith's  report  from  Boma,  dated  March 
21,  1908,  contains  the  following:  "I  have  the  honor  to  call 
your  particular  attention  to  the  conditions  brought  about  by 
the  excessive  rubber  tax  imposed  on  the  unfortunate  natives 
in  this  district.  The  similarity  between  these  conditions  and 
those  existing  in  the  region  visited  by  myself  are  worthy  of 
note.  It  is  no  uncommon  thing  for  the  rubber  gatherers  to  be 
eaten  by  leopards,  which  abound  in  many  regions  of  the  State, 
and  I  well  recall  the  case  of  a  native  who  had  been  thus  eaten 
and  whose  remains — what  was  left  of  them — were  brought  to 
the  State  post  at  Yambata  while  I  was  there.  The  so-called 


172  INTERNATIONAL   POLICE 

Separately  and  concurrently,  the  British  and  Ameri- 
can representatives  at  Brussels  made  emphatic  and 
repeated  representations,  and  urged  the  adoption  of 
reforms  which  should,  in  the  opinion  expressed  by  the 
Government  of  the  United  States  in  the  memorandum 
above  referred  to,  have  for  their  object : 

"1.  The  exemption  of  the  native  population  from 
excessive  taxation. 

' '  2.  The  inhibition  of  forced  labor. 

"3.  The  possibility  of  the  natives  becoming  holders, 
in  permanent  tenancy,  of  tracts  of  land  sufficiently 
large  to  afford  sustenance. 

"4.  To  make  it  possible  for  traders  and  settlers  of 
all  nationalities  to  secure  unoccupied  tracts  of  land, 
needed  for  the  prosecution  and  development  of  peace- 
ful commerce,  at  reasonable  prices,  in  any  part  of  the 
Kongo. 

"5.  The  procurement  and  guaranty  of  equal  and  ex- 
act justice  to  all  inhabitants  of  the  Kongo  through  the 
establishment  and  maintenance  of  an  independent  ju- 
diciary." (Foreign  Eelations,  1908,  p.  560-561.) 

Early  in  1907,  the  British  Government  had  expressed 
its  desire  that  Belgium  should  annex  the  Kongo82  in 
order  that  the  Free  State  might  be  placed  under  the 


police  expeditions  mentioned  in  the  report  are  nothing  more 
than  armed  raids  for  nonpayment  of  rubber  taxes  and  for  the 
purpose  of  securing  laborers  to  work  on  the  railroad  from 
Kindu  south  to  Fortes  d'Enfer."  (Foreign  Relations,  1908, 
p.  551.)  The  evidence  collected  by  the  British  Consul,  Sir 
Roger  Casement,  and  published  by  the  British  Government  is 
referred  to  in  the  corespondence. 

82The  British  opinion  relative  to  the  annexation  of  the 
Kongo  is  indicated  in  Charge  Carter's  report  of  Dec.  12,  1906. 
(Foreign  Relations,  1907,  Part  II,  p.  793-4.  Cf.  Minister 
Wilson's  report  of  February  7,  1907,  Foreign  Relations,  1907, 
Part  II,  p.  806.) 


INJUSTICE  173 

parliamentary  control  of  Belgium.  It  is  easy  to  un- 
derstand the  reluctance  of  King  Leopold  of  Belgium 
to  do  this.  To  let  his  right  hand  know,  as  it  were,  what 
his  left  was  doing.  The  demand  that  Belgium  should 
annex  the  Kongo  found  support  in  Belgium  also,  where 
opinion  had  been  aroused  by  the  evidence  of  the  atroci- 
ties committed  in  the  Kongo.  Those  who  urged  annex- 
ation did  so  on  the  ground  that  this  would  establish  a 
responsible  parliamentary  government  for  the  regions 
in  question,  and  put  an  end  to  the  abuses  of  uncon- 
trolled and  irresponsible  exploitation  of  the  natives 
for  purely  commercial  purposes. 

Although  we  do  not  find  in  the  diplomatic  corre- 
spondence any  indication  that  the  intervening  govern- 
ments intended  actually  to  have  recourse  to  force,83 

83Secretary  Root,  in  his  instruction  to  Minister  Wilson, 
January  15,  1907,  writes :  ' '  Our  attitude  toward  Kongo  ques- 
tion reflects  deep  interest  of  all  classes  of  American  people  in 
the  amelioration  of  conditions.  The  President's  interest  in 
watching  the  trend  toward  reform  is  coupled  with  earnest  de- 
sire to  see  full  performance  of  the  obligations  of  articles  2  and 
5  of  slave-trade  act,  to  which  we  are  a  party.  We  will  cheer- 
fully accord  all  moral  support  toward  these  ends,  especially 
as  to  all  that  affects  involuntary  servitude  of  the  natives.  It  is 
the  President 's  desire  to  contribute  by  such  action  toward  the 
realization  of  whatever  reforms  may  be  counseled  by  the  senti- 
ments of  humanity  and  by  the  experience  developed  by  the 
past  and  present  workings  of  the  Kongo  administration.  The 
Belgian  Parliament  having  adopted  principle  of  annexation 
and  appointed  a  committee  to  arrange  details,  it  is  alike  proper 
that  the  wish  of  the  President  for  substantial  improvement  of 
conditions  in  the  Kongo  be  made  known,  and  that  he  should 
for  the  present  observe  an  expectant  attitude,  as  we  under- 
stand is  the  policy  of  some  of  the  powers  signatories  to  the 
act  of  Berlin."  (Foreign  Relations,  1907,  Part  II,  p.  799-800. 
Cf.  similar  instructions  to  the  American  Charge  dated  De- 
cember 10,  ibid,  p.  793.) 

Sir  Edward  Grey  suggested  the  advisability  of  giving  the 
Belgian  Government  "...a  private  hint  as  to  the  attitude 
which  our  two  Governments  might  in  certain  contingencies  be 
compelled  to  adopt."  (Foreign  Relations,  1907,  Part  II,  p. 
825.) 


174  INTERNATIONAL   POLICE 

the  language  employed  was  of  a  nature  to  make  Bel- 
gium understand  that  if  it  did  not  give  heed  to  the  em- 
phatic protests  of  the  intervening  powers,  and  make  an 
effort  to  reform  the  abuses  in  the  Kongo,  the  super- 
visory powers  might  call  a  conference,  at  which  it  was 
possible  that  they  might  either  partition  the  Kongo 
Free  State,  or  place  it  under  some  other  sovereign. 

The  Belgium  Government  also  could  not  fail  to  un- 
derstand that  unless  it  put  an  end  to  the  abuses  in 
question,  it  would  incur  the  condemnation  of  two 
powerful  governments,  and  that  the  whole  Belgian 
people  would  be  pilloried  as  accomplices  of  the  inhu- 
manity of  the  Kongo  regime.  It  would  be  said  that 
Belgium  was  really  responsible  for  the  continuance  of 
the  barbarous  treatment  of  the  aborigines.  That  the 
purpose  of  these  representations  was  intervention,  and 
not  merely  a  proffer  of  friendly  advice,  is  shown  by  the 
pains  taken  to  give  the  action  of  the  powers  a  collective 
form.84  This  is  all  the  more  significant  in  view  of  the 

8*At  different  periods  of  this  discussion,  the  American  Gov- 
ernment appears  to  have  varied  somewhat  in  the  degree  of 
intimacy  of  the  collective  action  which  it  was  willing  to  take 
with  Great  Britain. 

January  23,  1908,  Minister  Wilson  reports:  "Visited  Bel- 
gian minister  for  foreign  affairs  in  company  with  Sir  Arthur 
H.  Hardinge  and  made  representation  in  accordance  with  our 
several  instructions."  (Foreign  Relations,  1908,  p.  540. 
These  instructions  were  that  each  representative  should  sepa- 
rately present  the  representations  of  his  own  government. 
Cf.  instructions  of  March  19,  ibid,  p.  550-551.) 

February  28,  1908,  Charge  Carter  reports  Sir  Edward  Grey 
as  hoping  that  if  further  action  was  necessary  it  might  be 
"...  a  joint  representation  of  both  our  governments,  and  to 
that  end  he  would  duly  inform  you  of  the  line  he  proposed 
to  take,  so  that  the  representations  in  question  might  be  iden- 
tical. 

"He  said  he  welcomed  the  fact  of  our  working  together  in 
this  matter,  and  that  the  amount  of  good  we  were  able  to  do 
in  the  Kongo  was  vastly  increased  and  far  greater  than  their 
isolated  action  would  be — our  action  being  disinterested  was 


INJUSTICE  175 

traditional  policy  of  the  United  States  not  to  take  part 
in  joint  representations  of  any  kind. 


open  to  no  suspicion  in  any  quarter — and  that  he  was  prepared 
to  go  with  us  as  far  as  we  would  wish. ' '  ( Foreign  Relations, 
1908,  p.  544.) 

Ambassador  Bryce,  in  his  note  to  the  Secretary  of  State, 
March  23,  1908,  wrote:  "I  am  now  directed  by  His  Majesty's 
Government  to  inform  you  that  they  are  very  sensible  of  the 
advantages  attaching  to  the  cooperation  of  the  United  States 
Government  in  their  efforts  to  bring  about  a  more  satisfactory 
state  of  affairs  in  the  Kongo,  and  I  am  to  add  an  expression 
of  their  cordial  thanks  for  the  communication  of  Mr.  Smith's 
report  and  the  consent  given  to  the  publication  of  extracts 
from  it  in  the  papers  to  be  submitted  to  Parliament."  (For- 
eign Relations,  1908,  p.  553.) 

April  1,  1908,  Secretary  Root  instructed  Minister  Wilson: 
"You  may  independently  and  coincidently  express  our  views 
in  the  same  sense  as  Great  Britain  does."  (Foreign  Rela- 
tions, 1908,  p.  556.) 

On  February  8,  1908,  Secretary  Root  informed  the  British 
Ambassador  "...  that  the  department  has  this  day  instructed 
by  telegraph  the  American  minister  at  Brussels  to  join  in 
representations  in  the  same  sense  as  those  proposed  to  be  made 
by  Sir  Edward  Grey."  (Foreign  Relations,  1908,  p.  562.) 
The  same  day,  he  telegraphed  Minister  Wilson:  "You  will 
in  conference  with  the  British  minister  and  in  your  repre- 
sentations to  the  Belgian  Government  support  the  line  pro- 
posed to  be  adopted  by  the  British  minister  for  foreign  af- 
fairs." (Ibid,  p.  563.)  That  this  instruction  was  carried  out 
is  indicated  in  Minister  Wilson 's  dispatch  of  April  17 : 

"Upon  receipt  of  these  instructions,  I  immediately  sought 
an  interview  with  Sir  Arthur  Hardinge,  and  informed  him  that 
I  had  been  instructed  to  'support  the  line  proposed  to  be 
adopted  by  the  British  minister  for  foreign  affairs,'  and  that 
I  would  be  glad  to  have  his  views  as  to  the  course  which  should 
be  adopted. 

"After  some  discussion  it  was  agreed  that  on  the  Monday 
following  Sir  Arthur  should  have  an  interview  with  M.  Davig- 
non,  and  hand  in  his  memoranda,  and  that  the  presentation  of 
the  memorandum  from  this  legation  should  follow  after  an 
interval  of  three  or  four  days.  It  was  also  agreed  that  in  the 
course  of  his  interview  he  would  advise  M.  Davignon  of  the 
exchange  of  views  which  had  taken  place  between  the  British 
Embassy  in  Washington  and  the  Secretary  of  State,  and  would 


176  INTERNATIONAL   POLICE 

Even  though  it  is  true,  as  the  diplomatic  correspond- 
ence shows,  that  the  intervening  governments  con- 
stantly based  their  protests  upon  the  failure  of  the 
Kongo  to  fulfil  treaty  stipulations,  the  true  ground  of 
action  was,  nevertheless,  humanitarian.  This  is  shown 
by  the  articles  of  the  treaty  and  by  the  references  to 


intimate  that  in  all  probability  a  communication  in  support  of 
the  British  propositons  would  be  received  from  this  legation. 

"In  performance  of  this  program  Sir  Arthur  saw  M. 
Davignon  on  Monday  afternoon,  and  immediately  afterwards 
sent  me  a  note  reporting  the  substance  of  the  interview. 

"Yesterdaj*  (Thursday,  16th)  I  visited  the  foreign  office 
and  in  the  absence  of  M.  Davignon,  who  was  in  attendance 
on  the  discussion  of  the  Kongo  annexation  bill  in  Parliament, 
I  delivered  the  memorandum  (which  I  had  prepared  and  pre- 
viously submitted  to  my  British  colleague)  to  the  Chevalier 
van  der  Elst,  secretary  general  of  the  foreign  office,  after  hav- 
ing first  verbally  informed  him  of  its  contents.  A  copy  of  the 
memorandum  is  herewith  inclosed."  (Foreign  Relations, 
1908,  p.  568-9.) 

In  the  memorandum  which  Minister  Wilson  presented  he 
supported  the  representation  of  the  British  Government  rela- 
tive to  forced  labor,  but  in  regard  to  the  "...  reference  to 
arbitration  of  all  purely  commercial  and  economic  ques- 
tions, the  American  Government  limits  itself  at  this  time  to  an 
expression  of  the  hope  that  the  Belgian  Government  may  see 
its  way  clear  to  frankly  and  promptly  accept  a  proposition  so 
reasonable  and  so  entirely  in  accordance  with  the  rapidly 
growing  practice  of  civilized  nations."  (Foreign  Relations, 
1908,  p.  569.)  The  memorandum  closed  with  an  expression 
of  concurrence  with  the  propositions  submitted  by  the  British 
Government,  and  the  hope  that  they  would  receive  the  careful 
attention  and  consideration  of  the  Belgian  Government. 

April  29,  Secretary  Root  instructed  Minister  Wilson : 
"Keeping  in  touch  with  the  British  minister,  you  will  con- 
tinue to  cooperate  with  him  in  this  matter  where  the  interests 
of  the  two  Governments  are  identical,  though  resting  on  differ- 
ent treaties.  The  department  will  await  your  further  re- 
ports." (Foreign  Relations,  1908,  p.  572.) 


INJUSTICE  177 

humanity  throughout  the  correspondence,85  and  by  the 
emphasis  which  is  laid  upon  the  disinterested  character 
of  the  American  action.86  If  the  United  States  had  no 
national  interest  to  serve,  humanity  stands  forth  as  the 
sole  ground  of  her  intervention. 

On  March  10,  1908,  Minister  Wilson  made  the  fol- 
lowing report  relative  to  the  proposed  treaty  of  an- 
nexation: "  Referring  to  my  No.  306,  with  which  are 
transmitted  copies  and  translations  of  the  amended 
treaty  of  annexation  of  the  Kongo,  the  'expose  des 
motifs'  of  the  ministry,  and  the  royal  decree  suppress- 
ing the  Foundation  of  the  Crown,  I  have  the  honor 
to  advise  the  Department  that  the  results  secured 
through  the  conclusion  of  this  convention  would  appear 
to  be  such  as  should  satisfy  international  opinion  and 
allay  the  opposition  which  existed  in  Belgium  to  the 
project  of  annexation  as  conceived  by  the  original 
treaty. 

"The  celebration  of  this  treaty  and  its  subsequent 
ratification  by  the  Belgian  Parliament  will  assure  two 
definite  and  important  results,  which  stand  out  clearly 
in  the  foreground. 

85The  powers  intervening  in  the  Kongo  relied  principally 
upon  Articles  2  and  5  of  the  Brussels  Act,  which  has  been  al- 
ready referred  to.  Great  Britain  also  based  its  protests  upon 
the  violation  of  the  Act  of  the  Conference  of  Berlin,  signed 
February  26,  1885.  But  the  United  States  was  not  a  party 
to  this  Act. 

Some  of  the  instances  where  considerations  of  humanity 
were  referred  to  as  a  ground  for  the  representations  of  the 
powers  will  be  found  in  the  documents  from  which  we  have 
quoted.  See,  amongst  others,  Foreign  Relations,  1907,  Part 
II,  p.  793,  794;  Ibid,  1908,  p.  541,  542,  550,  560.  See  also 
Senate  Document  No.  316,  p.  5. 

86The  disinterestedness  of  the  intervention  of  the  United 
States  is  referred  to  in  Foreign  Relations,  1908,  p.  544,  561. 
See  also  Senate  Document  No.  316,  p.  5. 
12 


178  INTERNATIONAL   POLICE 

"  First,  the  Domain  or  Foundation  of  the  Crown— 
which  is  only  another  name  for  the  regime  implanted 
by  the  King  in  the  Kongo,  which,  it  is  alleged,  is  re- 
sponsible for  the  conditions  which  have  provoked  in- 
ternational protest  and  action — is  suppressed,  and  the 
Sovereign's  autocratic  rule  of  these  regions,  through  a 
system  of  secret  bureaucracy,  is  ended. 

1  'Second,  the  Government  of  the  Kongo,  through  a 
responsible  ministry  with  parliamentary  control  of  the 
budget,  in  accordance  with  a  colonial  law  framed  under 
the  pressure  of  an  active  and  vigilant  Belgian,  as  well 
as  international  opinion,  should  make  it  certain  that 
these  regions,  with  the  native  population  and  vast  nat- 
ural resources,  will  be  ruled  and  administered  in  har- 
mony with  the  beneficent  prescriptions  of  the  Berlin 
and  Brussels  acts. 

"  Assuming  that  the  treaty  of  annexation  will  be  ap- 
proved by  Parliament,  the  first  of  these  objects  has 
been  attained,  and  from  the  constitution  of  the  com- 
mittee of  seventeen,  and  the  evident  temper  of  the 
dominant  majority  in  Parliament — which  has  doubt- 
less been  quickened  in  its  conscience  by  the  influence 
of  public  opinion  in  America  and  England — the  second 
will  not  be  long  delayed. 

"It  does  not  appear  to  me  that  the  terms  upon  which 
Belgium  acquires  the  Kongo  are  of  great  importance 
from  an  international  standpoint. 

"These  are  considerations  which  it  would  appear 
have  to  do  only  with  Belgian  interests.  Our  interest  in 
the  Kongo  question  being  purely  humanitarian  in  char- 
acter, we  have  been  concerned  only  in  the  abolition  of 
the  regime  which  is  held  to  be  responsible  for  condi- 
tions repugnant  to  civilization  and  to  the  humanitarian 
spirit  of  this  age,  and  in  the  substitution  therefor  of  a 


INJUSTICE  179 

constitutional  government  to  be  interpreted  and  exe- 
cuted in  a  spirit  of  benevolence  and  humanity. 

"  There  was  some  dissatisfaction  with  the  treaty 
when  it  was  first  laid  before  Parliament,  owing  to  the 
apparent  intention  to  give  the  King  absolute  control 
of  the  expenditure  of  the  $10,000,000  voted  to  him  in 
recognition  of  his  work  in  the  Kongo. 

"This  objection,  however,  was  met  by  a  declaration 
of  the  prime  minister  that  each  annual  installment  of 
this  sum  was  to  be  approved  upon  by  Parliament,  in 
accordance  with  the  Belgian  constitution. 

1  'I  am  of  the  opinion  that  the  treaty,  as  now  sub- 
mitted, will  receive  a  substantial  majority  in  Parlia- 
ment, and  that  future  consideration  of  the  Kongo  ques- 
tion will  relate  to  the  character  of  the  colonial  law." 
(Foreign  Relations,  1908,  pp.  549-550. )87 

A  recent  intervention  on  the  ground  of  humanity 
very  similar  to  the  intervention  in  the  case  of  the 
Kongo  was  undertaken  by  Great  Britain  and  the 
United  States  because  of  the  Putumayo  atrocities  in 
the  rubber  districts  in  the  wilds  of  Peru. 

The  Department  of  State,  as  early  as  1907,  received 
from  the  American  Consul  at  Iquitos  information  of 
the  inhumane  treatment  of  the  Peruvian  aborigines 
employed  in  collecting  rubber  in  the  Putumayo  district 
on  the  upper  Amazon. 

The  reasons  which  the  Department  of  State  con- 


87This  account  is  based  upon  the  somewhat  voluminous  cor- 
respondence contained  in  Foreign  Relations,  1905,  p.  87-93; 
ibid,  1906,  Part  I,  p.  88-105 ;  ibid,  1907,  Part  II,  p.  791-829 ; 
ibid,  1908,  p.  537-593;  Affairs  in  the  Kongo,  Senate  Docu- 
ment No.  147,  61st  Congress,  1st  Session;  Alleged  Conditions 
\n  Kongo  Free  State,  Senate  Document  No.  316,  59th  Congress, 
1st  Session.  In  Foreign  Relations,  1909,  p.  400-414  and  For- 
eign Relations,  1910,  p.  686-693,  will  be  found  some  further 
correspondence  relative  to  fulfilment  by  the  Belgian  Govern- 
ment of  the  expected  reforms  in  the  annexed  territory. 


180  INTERNATIONAL   POLICE 

sidered  as  a  sufficient  excuse  to  intervene  upon  the 
ground  of  humanity  were  later  stated  by  Secretary 
Knox  when,  on  February  4,  1913,  he  transmitted  for 
presentation  to  Congress  the  evidence  of  the  atrocities 
which  had  been  committed : 

"This  report,"  wrote  Mr.  Knox,  "while  exhibit- 
ing the  condition  of  virtual  slavery  to  which  the  native 
tribes  were  subjected,  showed  that  the  cruelties  so  dis- 
closed were  not  the  work  of  American  citizens,  nor  af- 
fected American  interests,  and  it  would  seem,  did  not 
call  for  representations  to  any  of  the  three  govern- 
ments concerned  in  the  disputed  territory.  Indeed, 
the  prospect  that  the  controversy  as  to  the  sovereignty 
in  that  quarter  was  about  to  enter  on  an  acute  state 
might  have  made  it  a  delicate  matter  for  a  neutral  gov- 
ernment to  impute  territorial  responsibility  to  any 
one  of  them."  (Foreign  Relations,  1913,  p.  1242.) 

Acting  Secretary  of  State  Wilson,  in  his  instructions 
of  April  6,  1912,  to  Mr.  Stuart  J.  Fuller,  Ameri- 
can Consul  at  Iquitos,  informs  him  of  the  subsequent 
events  which  had  led  the  Department  of  State  to  re- 
open the  American  Consulate  at  Iquitos,  and  to  under- 
take an  investigation  of  the  treatment  of  the  aborigi- 
nes in  the  Putumayo  district.  We  quote  this  docu- 
ment in  full: 

"In  arriving  at  the  decision  to  reopen  the  American 
Consulate  at  Iquitos,  Peru,  the  Department  has  had 
primarily  in  view  the  advisability  of  securing  informa- 
tion as  to  the  labor  conditions  along  the  affluents  of  the 
upper  Amazon,  and  particularly  the  Putumayo  River. 
Reports  transmitted  to  the  Department  by  Mr.  Eber- 
hardt  formerly  American  Consul  at  Iquitos,  during 
1907  and  1908  indicated  that  those  directing  the  gather- 
ing of  rubber  in  the  territory  claimed  by  Peru  to  be 
within  her  jurisdiction  were  responsible  for  practices 


INJUSTICE  181 

of  exploitation  of  the  native  Indians  which  threatened 
the  complete  extinction  of  the  primitive  races.  Sub- 
sequent to  the  receipt  of  the  reports  of  Mr.  Eberhardt 
by  the  Department  the  British  Government,  which  was 
in  possession  of  information  concerning  the  horrible 
condition  existing  in  the  forests  of  the  Putumayo  with- 
in the  concession  of  a  British  corporation,  directed  His 
Britannic  Majesty's  Consul  General  at  Rio  de  Janeiro, 
Sir  Roger  Casement,  to  make  personal  examinations  of 
the  situation.  Previous  to  this  time  this  government 
had  been  in  consultation  with  the  British  Embassy  at 
Washington,  with  a  view  to  cooperation  in  representa- 
tions to  the  Government  of  Peru  in  order  that  the  Pe- 
ruvian Government  might  undertake  a  thorough  in- 
vestigation of  the  subject  and  obtain  such  first-hand  in- 
formation regarding  the  brutal  extermination  of  the 
native  inhabitants  of  one  of  the  important  outlying 
Provinces  of  Peru  as  would  impel  it  to  take  the  reme- 
dial measures  that  the  circumstances  appeared  impera- 
tively to  demand.  Owing  to  the  imminence  during  the 
early  months  of  1910  of  an  outbreak  of  hostilities  be- 
tween Ecuador  and  Peru  because  of  conflicting  claims 
of  these  countries  regarding  the  territory  of  which  the 
Putumayo  region  was  a  part,  the  Government  of  the 
United  States  at  that  time  deemed  it  wise  to  postpone 
communication  with  the  Government  of  Peru  on  the 
matter  until  the  outstanding  dispute,  which  it  was  then 
hoped  was  approaching  settlement,  had  been  termi- 
nated. It  was  felt  that,  the  international  situation  hav- 
ing become  tranquilized  and  the  question  regarding  the 
title  over  the  upper  Amazon  region  decided,  such  rep- 
resentations as  the  Government  of  the  United  States 
might  determine  to  make  in  the  matter  would  more  cer- 
tainly produce  the  results  which  it  was  desired  to  bring 
about. 


182  INTERNATIONAL   POLICE 

"During  the  early  part  of  1911  the  Department  was 
informed,  through  the  British  Embassy  at  Washington, 
that  as  a  result  of  the  efforts  of  the  British  Minister  at 
Lima,  acting  under  instructions  from  his  government, 
the  Peruvian  Government  had  appointed  a  commission 
to  proceed  to  the  Putumayo  region  and  report  on  con- 
ditions there  found  to  exist.  The  Department,  to  which 
the  cause  of  the  defenseless  natives  of  the  Putumayo 
had  so  strongly  appealed  for  humanitarian  reasons, 
had  received  information  from  time  to  time  of  the 
views  of  the  British  Government  in  the  matter  and  in 
regard  to  the  steps  which  the  British  Minister  at  Lima 
had  been  instructed  to  take.  During  the  months  of 
April  and  May  of  the  past  year  the  British  Ambassador 
at  Washington  transmitted,  for  the  confidential  infor- 
mation of  the  Department,  copies  of  three  reports  of 
His  Britannic  Majesty's  Consul  General  at  Rio  de 
Janeiro,  which  presented  the  horrible  details  collected 
by  personal  observation  of  the  methods  employed  in  the 
collection  of  rubber  by  the  employees  of  the  rubber 
company  in  the  Putumayo  district.  These  reports  re- 
late the  appalling  brutalities  and  atrocities  from  which 
the  native  rubber  gatherers  of  the  forest  of  the  Putu- 
mayo were  suffering.  Copies  of  these  pamphlets  and 
other  reports  of  more  recent  dates  are  attached  for 
your  information  and  for  the  files  of  the  Consulate. 

"On  the  17th  of  July  last  the  American  Minister  at 
Lima  was  instructed  to  express  to  the  Peruvian  For- 
eign Office,  at  a  favorable  opportunity,  the  pleasure  that 
was  felt  by  this  Government  upon  learning  of  the  steps 
initiated  by  Peru,  inspired  by  the  high  ideals  of  serv- 
ing humanity,  to  put  an  effective  end  to  the  excesses 
in  the  Peruvian  rubber  forests  of  the  Amazon  Valley 
by  dispatching  a  judicial  investigating  commission  to 
the  Putumayo.  The  Minister  was  also  directed  to  ex- 


INJUSTICE  183 

press  the  hope  that  adequate  and  vigorous  measures 
would  follow  to  put  an  end  to  the  reported  barbarous 
system  in  vogue,  which  threatened  to  accomplish  the 
complete  extinction  of  a  defenseless  people.  It  was  at 
this  time  pointed  out  that  Peru  would  undoubtedly  un- 
derstand the  friendly  spirit  prompting  a  mention  of 
this  matter  by  the  Government  of  the  United  States 
and  would  realize  that  there  was  no  disposition  or  in- 
tention present  to  offend  by  referring  to  a  matter  con- 
cerning the  internal  affairs  of  Peru. 

"It  has  subsequently  developed  from  information 
before  the  British  Government,  that  the  action  taken 
by  the  Peruvian  Government  in  organizing  this  com- 
mission has  almost  entirely  failed  of  its  object.  The 
corrupt  influence  of  those  responsible  for  the  condi- 
tions in  the  Putumayo  has  been  seemingly  so  powerful 
as  to  defeat  the  laudable  ends  of  the  Central  Govern- 
ment. As  a  result  a  few  of  the  underlings  have  been  ar- 
rested while  no  serious  effort  has  been  made  to  appre- 
hend or  punish  the  leaders.  It  is  alleged  that  the  local 
administrative  and  judicial  authorities  residing  at 
Iquitos  have  afforded  such  improper  protection  to 
those  guilty  of  the  atrocities  systematically  practiced 
upon  the  natives  as  to  make  it  impossible  to  bring  the 
criminals  to  justice  without  a  thorough  carrying  out  of 
drastic  administrative  local  reforms.  Unless  the  Cen- 
tral Government  of  Peru  takes  a  vigorous  and  earnest 
stand  it  is  to  be  apprehended  that  the  practices  which, 
it  is  understood,  have  been  temporarily  suspended  as  a 
consequence  of  the  measures  already  taken  by  the  Gov- 
ernment, may  be  resumed  in  all  their  former  intensity 
until  the  native  tribes  will  have  become  completely 
exterminated. 

' '  The  Department  has  been  in  recent  close  communi- 
cation with  the  British  Foreign  Office,  following  sev- 
eral personal  conferences  with  Sir  Roger  Casement  at 


184  INTERNATIONAL   POLICE 

the  Department.    It  appeared  that  the  British  Govern- 
ment was  seriously  contemplating  the  publication  of 
the  evidence  on  the  Putumayo  in  its  possession  in  the 
belief  that  such  publicity  might  provide  an  effective 
remedy  to  the  shocking  situation.    However,  at  the  sug- 
gestion of  this  Government,  the  publication  of  the  re- 
ports was  withheld  pending  further  representations  to 
the  Government  of  Peru  on  the  subject.    The  Depart- 
ment therefore,  informed  the  American  Minister  at 
Lima  of  the  apparently  well-founded  rumor  that  no 
really  serious  efforts  are  being  made  to  prosecute  those 
responsible  for  the  atrocities  in  the  Putumayo,  and  to 
instruct  the  Legation  to  cooperate  with  the  British  Le- 
gation in  taking  the  matter  up  again  unofficially  and 
informally  with  the  Peruvian  Minister  for  Foreign 
Affairs.    In  these  representations  the  American  Min- 
ister was  directed  to  advise  the  Government  of  Peru 
that  it  was  understood  that  the  official  reports  on  the 
situation  in  the  Putumayo  probably  could  not  be  with- 
held much  longer  from  publication,  the  details  of  which 
inevitably  would  be  exploited  in  all  parts  of  the  world 
by  the  press.     The  American  Minister  was  directed 
to  say  that  unless  drastic  and  effective  action  demand- 
ed by  the  circumstances  was  taken  by  Peru  previous 
to  the  publication  of  this  evidence,  which  appeared  im- 
minent, such  an  exposure  of  the  situation  as  almost 
surely  must  follow  might  induce  public  opinion  of  the 
world  to  believe  that  Peru  had  shown  herself  unable 
effectively  to  exercise  sovereign  rights  over  a  region 
to  which  Peru  lays  claim  and  the  ultimate  rights  to 
(sic)  which  Peru  desires  to  submit  for  determination 
to  arbitration. 

"The  British  and  American  representatives  at  Lima 
had  a  conference  during  the  early  days  of  February 
with  the  Peruvian  President  and  Minister  of  Foreign 
Affairs.  The  Peruvian  Government  stated  that  it  was 


INJUSTICE  185 

endeavoring  by  all  means  within  its  power  to  bring  to 
justice  those  charged  with  the  crimes  in  the  Putumayo, 
and  welcomed  suggestions  as  to  a  system  of  reforms 
which  would  guarantee  adequate  protection  to  the  In- 
dians within  its  jurisdiction.  The  difficulties  of  the 
problem  presented  to  the  central  administration  were 
emphasized — the  unsatisfactory  communication  be- 
tween Lima  and  Iquitos;  the  difficulty  of  finding  men 
worthy  of  being  intrusted  with  the  administrative  func- 
tions in  that  outlying  region;  the  barrier  presented 
by  the  topographical  character  of  the  wild  region  of  the 
upper  Amazon ;  and  the  almost  absolute  impossibility 
of  counteracting  the  influence  of  those  identified  with 
the  continuation  of  the  present  iniquitous  system. 

"Under  the  circumstances  at  present  existing  and 
after  careful  consideration  of  the  reports  which  were 
received  from  the  American  Legation  at  Lima  and  the 
information  transmitted  by  the  British  representative, 
kindly  furnished  through  the  British  Embassy  here, 
the  Department  has  informed  Ambassador  Bryce  that 
it  deferred  to  the  judgment  of  the  British  Government 
in  fixing  the  time  for  the  publication  of  the  Casement 
reports.  The  Embassy  at  the  same  time  was  informed 
that  the  Department  could  not  but  believe  that  the  Pe- 
ruvian Government  should  properly  regard  any  pub- 
licity given  to  the  matter  as  in  accord  with  the  pur- 
poses so  frequently  enunciated  by  the  Peruvian  Gov- 
ernment of  doing  everything  within  its  power  to  put  an 
end  to  the  inhuman  treatment  of  the  Indian  popula- 
tions. Further,  it  was  felt  by  the  Department  that  the 
publication  was  strongly  recommended  in  view  of  the 
efforts  that  are  being  made  to  procure  funds  by  public 
subscription  making  it  possible  to  establish  in  the 
Putumayo  region  missions  for  work  among  the  In- 
dians. The  British  Government  now  states  that  it  will 


186  INTERNATIONAL   POLICE 

proceed  with  the  immediate  publication  of  the  reports 
in  its  possession  regarding  the  situation  of  the  Putu- 
mayo. 

' '  You  will  make  yourself  thoroughly  conversant  with 
the  local  situation  upon  arriving  at  your  post  and  keep 
the  Department  fully  and  promptly  informed  regard- 
ing this  subject,  in  which  the  Department  is  taking  the 
keenest  interest. 

"You  will,  upon  consultation  and  cooperation  with 
the  British  Consul  at  Iquitos,  make  arrangements  to 
visit,  at  intervals  which  may  in  your  judgment  appear 
advisable,  the  rubber  stations  along  the  Putumayo 
region  in  order  that  the  Department  may  have  before 
it  your  views,  based  upon  personal  observation.  For 
this  purpose  a  special  allowance  of  not  to  exceed  $500  is 
hereby  granted  you."  (Foreign  Relations,  1913,  p. 
1243-6.) 

The  method  and  object  of  the  investigation  by  Mr. 
Stuart  J.  Fuller,  the  American  Consul  at  Iquitos,  are 
given  in  his  report  of  July  31, 1912,  as  follows : 

"When  I  have  been  asked,  and  a  reply  seemed  neces- 
sary or  politic,  I  have  stated  that  I  have  neither  desire 
nor  instructions  to  interfere  in  any  way  whatsoever 
with  the  administration  of  justice  or  the  internal  af- 
fairs of  Peru,  but  that  in  the  course  of  duty  it  falls  to 
me  as  a  consul  to  keep  my  Government  informed  as  to 
labor  as  well  as  other  commercial  conditions  in  the  dis- 
trict in  which  I  may  be  stationed,  no  matter  what  part 
of  the  world,  and  that  I  shall  report  on  these  in  the 
Putumayo  as  well  as  in  the  other  rivers  of  the  district ; 
and  that  as  public  subscriptions  are  being  collected 
abroad  by  persons  with  the  same  high  ideal  of  serving 
humanity  that  has  actuated  the  Peruvian  Government 
in  the  steps  it  has  inaugurated  to  put  an  end  to  excesses 
in  the  Putumayo  region,  for  the  announced  purpose  of 


INJUSTICE  187 

sending  missionaries  to  that  region,  information  is  de- 
sired as  to  the  condition  that  American  citizens  com- 
ing on  this  mission  may  meet  with  and  the  conditions 
under  which  the  money  will  be  expended."88  (Foreign 
Relations,  1913,  p.  1263.) 

In  the  same  report,  Consul  Fuller  says  of  the  concur- 
rent investigation  by  the  British  Consul,  Mr.  George 
Babbington  Mitchell,  who  accompanied  him : 

"My  British  colleague  has  based  his  action  in  the 
matter  on  four  grounds : 

1 '  1.  The  responsibility  of  an  English  company,  still 
in  existence  though  in  process  of  liquidation,  for  the 
atrocities  in  the  past  and  their  share  in  the  responsi- 
bility for  conditions  in  the  present. 

"2.  The  presence  in  the  region  of  British  subjects. 

"3.  The  collection  in  Great  Britain  of  subscriptions 
with  the  object  of  sending  missionaries  to  the  region. 

"4.  The  general  idea  of  serving  humanity  by  re- 
porting to  his  government  the  true  conditions,  to  be 
published  if  they  see  fit."  (Foreign  Relations,  1913, 
p.  1263.) 

The  Peruvian  Government  and  the  companies  in  con- 
trol of  the  rubber  district  put  what  obstacles  they  could 
in  the  way,  to  prevent  the  consuls  from  procuring  from 


88Consul  Fuller 's  statement  cannot  be  considered  as  a  frank 
description  of  his  real  purpose.  The  investigation,  according 
to  the  statement  of  the  Consul  himself,  was  undertaken  in  op- 
position to  the  real  wishes  of  the  Peruvian  Government.  (See 
Foreign  Relations,  1913,  p.  1262.) 

We  note  here  an  embarrassment  evidently  due  to  the  unfor- 
tunate and  unfounded  belief  that  intervention  upon  the 
ground  of  humanity  is  not  justifiable  in  international  law. 
We  find  this  same  erroneous  opinion  expressed  by  Secretary 
Knox  in  his  letter  of  February  4,  quoted  above.  The  British 
Government  does  not  appear  to  have  fully  concurred  in  this 
opinion,  since  the  British  Consul  gives  humanity  as  one  of  the 
grounds  justifying  him  in  undertaking  the  investigation. 


188  INTERNATIONAL   POLICE 

the  natives  themselves  full  information  of  the  actual 
conditions  in  the  district.89 


89Cf.  Acting  Secretary  of  State  Wilson's  comment  quoted 
above  upon  Peru's  conduct  of  her  own  investigation.  (For- 
eign Relations,  1913,  p.  1244.) 

In  his  report  of  July  31,  1912,  Consul  Fuller  writes : 

"Although  I  am  unable  to  point  out  at  present  anything 
specific,  still  my  impression  is  now  that  the  government  is  no 
more  anxious  to  have  us  make  a  trip  to  the  Putumayo  or  to  see 
personally  the  conditions  existing  there  than  the  company  is, 
so  that  we  should  probably  gain  no  more  information  from  a  trip 
on  one  of  the  government  launches  than  from  that  of  the  com- 
pany." 

In  the  same  report  he  writes : 

"In  making  our  arrangements  with  the  company,  we  in- 
sisted on  paying  our  passage  and  stated  that  we  also  wished 
to  pay  for  anything  that  we  might  find  it  necessary  to  buy  up 
the  river,  although  they  offered  us  free  passage  and  all  we 
might  need." 

Further  along  he  remarks : 

"The  local  situation  remains  much  the  same  as  it  was  two 
weeks  ago,  so  far  as  the  Iquitos  public  in  general  is  concerned. 
The  tone  of  the  articles  that  have  been  appearing  in  the  public 
press  has  produced,  however,  a  feeling  of  irritation  and  resent- 
ment at  what  they  privately  characterize  as  meddling  on  the 
part  of  the  United  States  and  England  among  the  Government 
officials  here,  but  to  both  Consul  Michell  and  myself  they  have 
continued  studiously  courteous.  The  officials  are  undoubtedly 
becoming  nervous  in  regard  to  the  situation. 

"My  British  colleague  and  I  called  on  the  acting  prefect 
and  applied  for  some  document  in  the  nature  of  a  passport, 
to  be  addressed  to  the  local  authorities,  and  this  he  said  he 
would  be  glad  to  give  us.  He  also  suggested  sending  a  mili- 
tary aide  to  accompany  us,  and  though  we  were  by  no  means 
enthusiastic  over  this  proposition  I  fear  that  we  may  not  be 
able  to  avoid  it."  (Foreign  Relations,  1913,  p.  1262;  Cf.  p. 
1244-5,  quoted  above.) 

Consul  Fuller  closed  his  report  of  August  6  as  follows : 

"I  regret  that  both  the  company  and  the  Government  adopt- 
ed the  course  of  preventing  us  from  seeing  the  actual  con- 
ditions wherever  possible,  but  trust  that  the  course  I  pursued 
in  the  matter  may  meet  with  the  department's  approval." 
(Foreign  Relations,  1913,  p.  1278.) 


INJUSTICE  189 

From  the  reports  of  Consuls  Eberhardt,  Fuller, 
Mitchell,  and  Casement,  the  prevalence  of  horrible  con- 
ditions in  the  Putumayo  district  was  established  be- 
yond any  possibility  of  doubt.90 

We  do  not  wish  to  dwell  upon  the  appalling  brutali- 
ties to  which  the  Peruvian  aborigines  were  subjected. 
Consul  Eberhardt,  in  his  report  (1907)  explains  how 
the  indebtedness  of  the  Indians  for  the  food  which  was 
supplied  them  resulted  in  a  system  of  peonage,  and 
these  peons,  held  in  a  bondage  of  debt,  could  be  trans- 
ferred from  one  employer  to  another.  If  the  poor 
Indian  attempts  to  run  away,  he  is  tracked  in  the  for- 
est by  hostile  Indians  who  bring  him  back,  dead  or 
alive.  Consul  Eberhardt  relates  all  manner  of  cruelties 
practiced  upon  these  peons:  the  beating  and  kicking 
of  Indian  women,  the  dashing  of  a  baby's  brains 
against  a  tree  because  it  " .  .seemed  to  interfere  with 
her  [the  mother's]  bringing  in  a  sufficient  amount  of 
rubber..,"  the  disemboweling  of  a  pregnant  woman 
with  the  stroke  of  a  sharp  machete,  and  other  hor- 
rors of  a  similar  nature.  (Foreign  Relations,  1913,  p. 
1247-9.  Cf.  Ibid,  p.  1242-4.  See  also  "Slavery  in 
Peru,"  House  Document  No.  1366,  67th  Congress,  3rd 
Session.) 

Testimony  of  similar  atrocities  are  published  in  the 
reports  of  the  other  consuls. 

Consul  Fuller  gives  the  following  account  of  the 
labor  situation  in  Peru:  "In  the  second  place,  for  a 
full  comprehension  of  the  existing  situation  it  is  neces- 
sary to  examine  into  the  general  labor  situation 
throughout  this  part  of  Peru.  An  important  factor  in 
this  phase  of  the  situation  is  found  in  the  ancient, 
deep-rooted,  and  almost  universal  attitude  of  the  Pe- 


90See  Foreign  Relations,  1913,  p.  1242,  1244,  1246-9;  see 
also  "Slavery  in  Peru,"  House  Document  No.  1366,  62nd 
Congress,  3rd  Session. 


190  INTERNATIONAL   POLICE 

ruvians,  who,  while  they  may  not  approve  of  cruel 
and  inhuman  treatment,  generally  regard  the  Indians 
as  placed  here  by  Providence  for  the  use  and  benefit 
of  the  white  man  and  as  having  no  rights  that  the 
white  man  need  respect. 

* '  This  attitude  of  the  people  has  found  concrete  ex- 
pression in  the  universal  system  of  peonage,  an  old 
institution,  well  established,  recognized  by  law,  and 
which  has  come  to  be  the  basis  on  which  the  rubber 
business  (the  sole  industry  of  trans-Andean  Peru)  al- 
most entirely  rests.  The  system  of  advancing  sup- 
plies, necessities  and  luxuries,  to  peons  and  rubber 
gatherers  is  universal  in  this  part  of  Peru  and  has  led 
to  the  establishment  of  what  is  virtually  a  slave  trade. 
The  trades  encourage  the  " patrons"  operating  rubber 
sections  to  continually  enlarge  their  spheres  of  oper- 
ations, so  that  they  will  have  more  rubber  to  sell  and 
can  buy  more  imported  goods.  Labor  being  compara- 
tively scarce  and  expensive  throughout  the  district,  it 
is  to  the  patron 's  interest  to  get  those  working  for  him 
hopelessly  into  his  debt,  which  means  that  he  can  retain 
their  services  as  peons  until  they  pay  this  off.  It  is 
difficult  to  maintain  that  this  system  of  servitude  is 
not  recognized,  since  it  is  universal  and,  while  never 
discouraged  by  the  authorities,  is  certainly  in  many 
cases  upheld. 

"It  simply  means  that  the  native  who  is  unable  to 
pay  for  the  advance  he  has  been  encouraged  to  take  is 
seized  by  the  patron  who  designedly  advanced  him 
more  than  he  could  pay  for,  and  is  compelled  to  work 
off  the  debt.  As  he  must  be  lodged  and  fed  in  the  mean- 
while, the  cost  of  this  is  added  to  his  old  debt,  and,  by 
further  advances,  care  is  taken  to  keep  the  debt  at  a 
point  where  it  can  never  be  overtaken.  As  these  claims 
are  transferable,  the  person  of  the  debtor  being  also 
transferred  to  the  new  creditor,  the  Indians  and  their 


INJUSTICE  191 

families  are  really  bought  and  sold,  passing  from  hand 
to  hand  under  a  system  that  bears  a  striking  resem- 
blance to  actual  slavery."  (Report  of  Oct.  28,  1912, 
Foreign  Relations  1913,  pp.  1251-2.) 

The  Indians  are,  according  to  Consul  Fuller 's  report, 
" . .  mild,  docile,  inoffensive,  and  childlike,  just  as 
they  are  reported  to  have  been  by  Robuchon  the  ex- 
plorer, by  Consul  Eberhardt,  and  by  Sir  Roger  Case- 
ment." (Foreign  Relations,  1913,  p.  1269.)  He  re- 
marks, "I  doubt  whether  they  know  the  difference  be- 
tween proper  treatment  at  the  hands  of  the  whites  and 
maltreatment,  for  the  simple  reason  that  the  first  idea 
of  the  white  man  they  had  was  bad  usage.  In  case  of 
any  trouble  they  would  not  be  likely  to  appeal  to  the 
authorities.  They  would  not  understand  how,  and 
they  have  no  conception  of  government.  The  only  way 
to  protect  them  is  to  watch  over  them  and  their  inter- 
ests." (Ibid,  p.  1269-1270.) 

In  his  report  of  October  28,  1912,  Consul  Fuller  re- 
marks: "As  to  the  past,  the  truth  is  that  the  district 
was  the  ash  barrel  of  both  Peru  and  Colombia,  and  the 
concessionaires,  jthougji  cognizant  of  this,  were  so 
anxious  to  make  money  that  they  took  into  their  employ 
without  investigation  any  of  the  ashes  who  professed 
a  willingness  to  work.  The  deplorable  result  is  al- 
ready known  to  the  Department.  It  was  due  to  the 
criminal  negligence  of  the  Peruvian  and  British  con- 
cerns, who  in  turn  controlled  the  district,  and  the  total 
absence  of  Government  supervision.  The  British  di- 
rectors who  entrusted  the  conduct  of  their  business 
here  entirely  to  Peruvian  hands  cannot  rely  on  that 
as  relieving  them  from  responsibility  in  the  matter." 
(Foreign  Relations,  1913,  p.  1278). 

After  it  was  evident  that  the  Peruvian  Government 
would  not  undertake  any  adequate  measures  of  reform 
from  sentiments  of  humanity,  the  hope  seems  to  have 


192  INTERNATIONAL   POLICE 

been  entertained  that  the  fear  of  losing  the  territory  in 
question  might  stimulate  the  zeal  of  the  Government, 
and  check  the  gross  outrages  committed  by  the  agents 
of  the  companies  upon  the  aborigines.  (Ibid,  p.  1245, 
p.  1273-4.) 

Peru  was  given  to  understand  that  her  claim  to  the 
sovereignty  of  the  regions  in  question  might  be  im- 
peached with  success  by  the  other  claimant  govern- 
ments if  it  were  admitted  that  Peru  could  not  police  the 
territory  to  which  she  laid  claim.  (Ibid,  p.  1245.) 

For  the  purpose  of  bringing  the  pressure  of  public 
opinion  to  bear  upon  Peru,  the  British  Government  had 
proposed  to  publish  the  Casement  report  containing 
evidence  of  the  atrocities  committed  in  the  Putumayo 
district,  and  after  the  American  Government  withdrew 
its  objections,  a  blue  book  was  issued,  July,  1912.91  The 


01  This  blue  book  is  reproduced  in  House  Document  1366  on 
' '  Slavery  in  Peru, ' '  62nd  Congress,  3rd  Session.  It  contains  a 
note  which  Secretary  Knox  addressed  May  24,  1912,  to  the 
British  Charge  in  which,  at  the  last  moment,  the  Secretary 
suggested  that  the  publication  of  the  evidence  be  deferred  in 
view  of  the  new  legislation  promised  by  Peru. 

Secretary  Knox  wrote:  ''In  view  of  this  positive  manifes- 
tation of  the  purposes  of  the  Government  of  Peru,  I  have  the 
honor  to  inquire  whether  His  British  Majesty's  Government 
might  not  be  of  the  opinion  that  it  would  be  most  conducive  to 
the  attainment  of  the  ends  desired  to  postpone  for  the  present 
the  publication  of  the  correspondence  transmitted  with  your 
note  under  acknowledgment. ' '  (Slavery  in  Peru,  House  Docu- 
ment No.  1366,  62nd  Congress,  3rd  Session,  p.  441.) 

In  consideration  of  the  evidence  of  the  bad  faith  and  pro- 
crastination of  the  Peruvian  Government  then  before  Secre- 
tary Knox,  it  is  hard  to  understand  what  good  purpose  could 
have  been  served  by  this  delay. 

Sir  Edward  Grey,  in  his  reply,  June  27,  1912,  said :  "I  am 
unable  to  fall  in  with  Mr.  Knox 's  view  that  publication  might 
with  advantage  be  deferred,  as  I  am  convinced  that  an  au- 
thoritative account  of  the  facts  of  the  case  cannot  but  assist 
the  Peruvian  Government  in  their  reforming  efforts  and  direct 
them  to  the  proper  channels."  (Ibid,  p.  442.) 


INJUSTICE  193 

London  Times,  in  an  editorial  of  July  15,  1912,  com- 
mented severely  upon  the  atrocities  revealed  in  this 
publication  (Foreign  Relations,  1913,  p.  1240). 

The  House  of  Representatives  took  notice  of  this 
statement,  and  in  a  resolution  of  August  1,  1912,  di- 
rected the  Secretary  of  State, ' '  if  not  incompatible  with 
the  public  interest,  to  transmit  to  the  House  of  Repre- 
sentatives all  information  in  the  possession  of  his  De- 
partment concerning  the  alleged  existence  of  slavery  in 
Peru,  and  especially  all  information  tending  to  show 
the  truth  or  falsity  of  the  following  statement  made  in 
an  editorial  in  the  London  Times  of  July  fifteenth, 
nineteen  hundred  and  twelve:  'The  bluebook  shows 
that  in  an  immense  territory  which  Peru  professes  to 
govern  the  worst  evils  of  the  plantation  slavery  which 
our  forefathers  labored  to  suppress  are  at  this  moment 
equaled  or  surpassed.  They  are  so  horrible  that  they 
might  seem  incredible  were  their  existence  supported 
by  less  trustworthy  evidence.'  "  (Foreign  Relations, 
1913,  p.  1240.) 

In  response  to  this  resolution,  Secretary  Knox  trans- 
mitted the  correspondence  and  documents  from  which 
we  have  been  quoting  in  the  preceding  pages. 

February  6,  1913,  Ambassador  Bryce  addressed  the 
following  note  to  the  Secretary  of  State: 

"Sir:  With  reference  to  previous  correspondence 
relative  to  the  Putumayo  atrocities,  I  have  the  honor 
to  transmit  to  you,  herewith,  two  copies  of  a  dispatch 
from  His  Majesty's  Consul  at  Iquitos  reporting  on  the 
recent  visit  to  the  Putumayo  district,  which  he  carried 
out  in  the  company  of  the  United  States  Consul,  Mr. 
James  Fuller. 

"In  communicating  this  report  to  you  I  am  to  ask 
you  to  be  so  good  as  to  furnish  His  Majesty's  Govern- 
ment with  a  copy  of  Mr.  Fuller's  report  on  the  visit  and 
to  favor  me  with  the  expression  of  your  views  on  the 

13 


194  INTERNATIONAL   POLICE 

general  question  and  on  the  action  which  the  two  Gov- 
ernments should  or  can  now  take. 

"I  am  also  to  inform  you  that  in  the  opinion  of  His 
Majesty's  Government  the  Peruvian  Government 
should  be  given  an  opportunity  of  offering  any  obser- 
vations they  may  desire  to  make  on  the  reports  of  the 
two  Consuls  before  these  reports  are  published." 
(Foreign  Relations,  1913,  pp.  1287-8.) 

In  his  reply,  Secretary  Knox  said : 

1(1  Before  transmitting  this  correspondence  to  the 
President,  the  Department  of  State  conferred  with 
the  Peruvian  Minister,  apprizing  him  of  the  general 
tone  of  Mr.  Fuller's  findings.  Mr.  Pezet  thereafter 
described  the  measures  recently  adopted  by  the  Pe- 
ruvian Government  with  a  view  towards  ending  the 
mistreatment  of  the  Putumayo  Indians  and  made  re- 
newed assurances,  on  behalf  of  his  Government,  to  the 
effect  that  it  would  henceforth  rigorously  inforce  law 
and  order  throughout  the  rubber-producing  district  of 
Peru. 

"In  your  excellency's  note  under  acknowledgment 
you  were  good  enough  to  ask  for  an  expression  of  my 
views  regarding  the  Putumayo  question  and  the  action 
now  called  for  thereon.  In  reply  I  may  say  that,  in 
view  of  the  rigorous  policy  apparently  animating  the 
present  administration  in  Peru,  the  remoteness  of  the 
district  and  the  attendant  obstacles  in  the  way  of  ef- 
fective reform  I  am  of  the  opinion  that  any  further 
action  on  the  part  of  His  Majesty's  Government  or  of 
the  American  Government  would  appear  inopportune, 
at  least  at  the  time  being,  inasmuch  as  it  might  be  in- 
strumental in  stirring  up  public  sentiment  in  Peru  to 
such  an  extent  as  to  hinder  whatever  real  desire  now 
exists  there  for  bettering  the  conditions  under  which 
the  Indians  labor."  (Foreign  Relations,  1913,  p. 
1288.) 


SLAVE    TRADE  195 

Again  on  September  10,  1913,  the  British  Ambassa- 
dor, Sir  Cecil  Spring  Rice,  wrote  the  Secretary  of 
State: 

' '  On  February  25  Mr.  Knox  forwarded  to  my  prede- 
cessor a  Congressional  document  containing,  among 
other  correspondence  regarding  the  Putumayo  ques- 
tion, the  report  of  the  American  Consul  at  Iquitos,  Mr. 
Fuller,  on  conditions  in  that  region  of  Peru. 

1  'I  need  not  recall  to  your  mind  the  particulars  of 
this  question  which  has  engrossed  the  attention  of  our 
two  governments  for  the  last  two  years,  but  I  have  now 
been  instructed  by  Sir  E.  Gray  to  inquire  what  con- 
clusions you  have  arrived  at  in  regard  to  Mr.  Fuller's 
report. 

"I  should  therefore  be  much  obliged  if  you  could 
give  me  your  views  on  the  question  and  could  indicate 
to  me  the  policy  which  you  think  it  best  to  adopt  in  the 
present  position  of  affairs. ' '  ( Foreign  Relations,  191 3, 
p.  1289.) 

No  further  action  is  disclosed  in  the  correspondence 
published  in  Foreigtn  Relations  for  1913,  recently 
published  by  the  Government.  For  some  reason  not 
stated  in  the  correspondence,  the  Department  of  State 
at  that  time  was  unwilling  to  cooperate  with  Great 
Britain  in  undertaking  a  humanitarian  intervention 
which  would  have  had  a  salutary  effect  upon  Peru  and 
other  countries  which,  in  violation  of  international  law, 
condone  and  protect  the  perpetrators  of  atrocities 
upon  defenseless  aborigines. 

§  8(e).    SUPPRESSION  OF  THE  SLAVE  TRADE 

Several  decades  before  slavery  itself  was  recognized 
as  contrary  to  international  law,  the  slave  trade  was 
held  to  be  illegal  by  a  consensus  of  opinion  on  the  part 


196  INTERNATIONAL   POLICE 

of  the  powers  who  undertook  measures  of  cooperation 
for  its  suppression.92     The  willingness  of  the  great 

92The  slave  trade  was  a  natural  adjunct  of  slavery  when  the 
latter  was  fully  recognized  as  an  institution  of  the  law  of 
nations,  but  the  manifest  and  frightful  cruelties  which  were 
inseparable  from  the  commerce  in  human  beings  came  to  be 
considered  by  a  consensus  of  the  civilized  powers  as  so  gross  a 
violation  of  humanity  as  to  justify  the  exercise  of  constraint 
against  any  state  which  tolerated  it  under  its  flag.  In  other 
words,  the  slave  trade  became  illegal  and  a  sufficient  justifi- 
cation for  humanitarian  intervention  against  any  govern- 
ment countenancing  it. 

The  late  Alpheus  H.  Snow  has  made  a  thorough  study  of 
the  history  of  the  abolition  of  the  slave  trade  (in  his  The 
Question  of  Aborigines  in  the  Law  and  Practice  of  Nations, 
chap.  VII,  p.  85-100),  and  reaches  the  conclusion  that  "  . .  .un- 
doubtedly '  the  slave  trade, '  in  the  technical  sense,  is  now  con- 
trary to  the  universal,  or  common,  law  of  nations.  A  state 
which  should  authorize  its  citizens  to  engage  in  it  would,  it 
would  seem,  clearly  violate  the  law  of  nations.  A  state  which 
should  even  tolerate  traffic  in  slaves,  as  a  social  institution,  in 
any  place  under  its  sovereignty,  would  undoubtedly  at  the 
present  time  subject  itself  to  international  repressive  or  puni- 
tive action,  unless  it  could  show,  in  its  own  defense,  that  it  had 
done,  and  was  doing,  everything  possible  to  abolish  the  traffic. ' ' 

Hall  lends  his  authority  to  this  view.  He  writes  (Inter- 
national Law,  4  ed,  §  108,  p.  343)  :  "Thus  a  compact  for  the 
establishment  of  a  slave  trade  would  be  void,  because  the  per- 
sonal freedom  of  human  beings  has  been  admitted  by  modern 
civilized  states  as  a  right  which  they  are  bound  to  respect  and 
which  they  ought  to  uphold  internationally." 

One  is  surpised  to  read  in  Westlake  (International  Law, 
vol.  I,  p.  170)  :  "Thus  for  the  detection  and  suppression  of 
the  slave  trade,  there  is  no  right  of  visit  and  search  by  general 
law,  but  only  by  treaty  between  states  whch  have  conceded  it 
to  one  another  in  their  just  hatred  of  that  traffic,  which,  how- 
ever abominable,  has  never  been  regarded  as  an  international 
offense."  (Cf.  Woolsey,  6  ed.,  §§  215-218,  p.  370-378).  The 
offense,  it  is  true,  is  primarily  one  for  repression  by  each 
sovereign  and  not  like  piracy,  one  which  may  be  punished  by 
all  the  states,  but  it  is,  nevertheless,  an  offense  against  inter- 
national law  for  the  suppression  of  which  each  government  is 
responsible,  and  a  failure  to  fulfil  this  obligation  is  in  itself 
an  international  offense. 


SLAVE    TRADE  197 

powers  to  intervene  to  suppress  the  slave  trade  has 
been  shown  upon  several  occasions.    Layard,  the  Brit- 

The  following  excerpts  from  the  notes  and  correspondence 
of  Sir  Frederick  Rogers  [later  Lord  Blachford]  indicate  the 
zeal  with  which  the  British  Government  under  Lord  Palmer- 
ston  used  its  influence  to  repress  the  slave  trade. 

"The  English  nation,  while  its  own  interests  are  not  very 
visibly  and  gravely  concerned,  has  a  strong  vein  of  philan- 
thropy, but  it  is  in  regard  to  negro  slavery  that  this  feeling 
has  so  taken  hold  of  the  people,  and  is  so  powerfully  organized 
as  to  become  a  political  influence.  Partly  on  this  account  and 
partly  also,  I  doubt  not,  from  genuine  conviction,  Lord  Pal- 
merston  had  taken  up  this  particular  question,  and  felt  him- 
self bound  to  assist,  if  possible,  certain  plans  of  the  French 
Government  for  conducting  an  immigration  from  the  West 
Coast  of  Africa  to  the  French  negro  colonies,  which  was  sup- 
posed to  have  hitherto  covered  a  disguised  slave  trade. 

"The  French  Government,  pressed  by  its  planters,  did  not 
venture  simply  to  suppress  this,  and,  I  take  it  for  granted, 
replied  to  a  remonstrance  by  pointing  to  our  own  coolie  emi- 
gration (which  it  had  for  some  time  been  my  special  function 
to  superintend ) .  At  any  rate,  Lord  Palmerston,  then  Premier, 
and  Lord  Clarendon,  then  at  the  Foreign  Office,  suggested  to 
the  French  that,  if  they  would  give  up  their  African  emigra- 
tion, they  might  be  allowed  to  take  coolies  from  India  to  their 
colonies  on  the  same  terms  (mutatis  mutandis)  as  those  on 
which  they  were  taken  to  English  colonies.  Neither  the  India 
Office,  nor  the  Colonial  Office,  much  liked  this  arrangement, 
because  it  appeared  probable  that,  since  we  had  not  been 
more  than  able  to  protect  the  coolies  in  our  own  colonies,  we 
should  be  less  than  able  to  protect  them  in  those  of  France ; 
and  so  the  evil  of  quasi-slavery  might  exist,  the  responsibility 
of  it  merely  being  transferred  from  the  Foreign  Office  (which 
was  bound  to  protect  the  Africans)  to  us,  or  rather  to  the 
India  Office,  which  was  bound  to  protect  the  Indians." 
(Marindin:  Letters  of  Lord  Blachford,  p.  170-171.) 

Sir  Frederick  Rogers  sums  up  a  long  harangue  of  Persigny 
relative  to  the  relations  between  France  and  England  in  their 
bearing  on  the  negotiation  in  hand  :  ' '  The  sense  is  this.  The 
French  Government  have  promised  their  colonies  to  revive  the 
slave  trade  (in  substance),  the  English  make  such  a  row  about 
this  that  it  may  lead  to  war  or  something  like  it,  unless  the 
dispute  is  evaded.  The  French  Government  is  too  far  pledged 
to  give  in  visibly,  whether  wrong  or  right.  But  if  you  will  let 
us  get  emigrant  laborers  from  India  instead  of  buying  slaves  in 


198  INTERNATIONAL   POLICE 

ish  Ambassador  at  Madrid,  when  approached  by  the 
American  representative  in  regard  to  humanitarian 

Africa,  we  will  give  up  the  African  enterprise  and  tell  our 
colonists  that  we  have  made  a  capital  bargain  for  them,  and 
so  we  shall  be  out  of  the  mess  altogether."  (Ibid,  p.  175.) 

In  reference  to  the  space  allotment  for  coolie  emigrants,  Sir 
Frederick  Rogers  writes:  "I  was  much  amused  at  one  point 
which  1  tried  to  make.  The  French  pack  their  emigrants  and 
ships  twice  as  close  as  we  do,  and  yet  they  have  had  very  good 
passages.  Of  course  they  object  to  imposing  on  themselves  our 
strict  law,  and  I  wanted  to  come  to  some  compromise,  so  I 
tried  to  find  what  would  pacify  them,  and  suggested  50  cubical 
feet  par  personne.  This  posed  old  Persigny,  who  wanted  to 
know  what  it  meant ;  and  betook  himself  in  a  vague  perplexed 
way,  like  a  puzzled  linen-draper,  to  a  measuring  tape  which 
he  began  to  pull  out,  and  measure  distances  in  the  air  as  if 
that  would  help  him.  So  I  explained  that  50  cubical  feet  was 
6  feet  long  ll/2  feet  broad  and  5y2  feet  high,  or  to  make  the 
matter  more  intelligible,  if  he  would  imagine  the  whole  ground 
pretty  well  covered  with  human  beings  lying  at  full  length, 
and  5y2  feet  of  height  above  them,  that  would  be  the  thing — 
'and,'  I  added,  'I  don't  think  you  can  well  give  a  man  less 
than  that. '  I  shall  not  easily  forget  the  mixture  of  disgust  and 
astonishment  and  amusement  with  which  he  burst  out  'Sacre- 
Dieu!  non!  they  will  all  be  sick'  (or  rather  'seek')  'too,'  on 
which  I  began  to  repent  me  of  having  given  in  so  much,  and 
tried  to  retrieve  a  point  or  two,  with  what  success  remains  to 
be  seen."  (Ibid,  p.  178-9.) 

An  extract  from  another  letter  shows  how  large  an  account 
was  taken  of  public  opinion  in  regard  to  the  commerce  in 
human  beings:  "He  read  me  a  long  list  of  the  'Minister  of 
Marine's'  objections  to  what  I  may  call  my  requirement,  that 
the  French  should  collect  emigrants  for  themselves  instead  of 
throwing  it  on  the  British  Government,  and  of  his  own  reply 
which  was  characteristic  and  amusing.  The  civil  deference 
with  which  the  objections  of  the  '  Marine '  were  magnified  and 
evaded  was  very  French;  and  an  elaborate  argument  that 
the  cordial  and  bona  fide  cooperation  of  the  English  Govern- 
ment might  be  counted  upon  because  the  success  of  the  scheme 
was  the  only  way  in  which  Lord  Palmerston  could  escape  from 
allowing  the  French  emigration  from  Africa  and  so  incurring 
the  pressure  of  public  opinion,  'which  is  so  susceptible  a  cet 
egard'  and  of  'la  Societe"  Biblique'  (which  was  made  to  fig- 
ure as  a  great  political  power),  was  wonderfully  character- 
istic of  a  French  view  of  English  manners."  (Ibid,  p.  180.) 


SLAVE   TRADE  199 

intervention  in  Cuba,  expressed  a  readiness  to  support 
the  views  of  the  United  States,  saying  that  England 
also  had  abundant  cause  to  intervene  in  Cuba  on  ac- 
count of  the  slave  trade  (Callahan:  Cuba  and  Inter- 
national Relations,  1899,  p.  423). 

At  the  close  of  his  career  in  1864,  Lord  Palmerston, 
then  Prime  Minister,  wrote  the  following  letter  to  Sir 
John  Crampton,  the  British  Ambassador  at  Madrid : 

"I  have  been  reading  your  account  of  your  represen- 
tation to  the  Spanish  minister  about  the  slave  trade, 
carried  on  for  the  supply  of  Cuba.  Your  arguments 
are  perfectly  just,  and  your  statements  are  all  borne 
out  by  facts.  If  you  have  occasion  to  talk  with  him 
again  on  these  matters,  you  may  say,  as  a  proof  that 
the  feeling  against  the  slave  trade  is  not  confined  in 
England  to  enthusiasts  and  West  Indian  proprietors, 
that  there  are  no  two  men  in  England  more  determined 
enemies  of  the  slave  trade  than  Lord  Russell  and  my- 
self, and  certainly  we  are  neither  of  us  bigoted  en- 
thusiasts nor  West  Indian  proprietors,  but  we  have 
both  labored  assiduously  and  with  much  success  for 
the  extirpation  of  that  abominable  crime. 

"During  the  many  years  that  I  was  at  the  Foreign 
Office,  there  was  no  subject  that  more  constantly  or 
more  intensely  occupied  my  thoughts,  or  constituted 
the  aim  of  my  labors ;  and  though  I  may  boast  of  hav- 
ing succeeded  in  accomplishing  many  good  works — and 
among  them  materially  assisting  the  Spaniards  to  get 
rid  of  their  tyrannical  dynasty,  and  to  establish  Parlia- 
mentary Government — yet  the  achievement  which  I 
look  back  to  with  the  greatest  and  the  purest  pleasure 
was  the  forcing  the  Brazilians  to  give  up  their  slave 
trade,  by  bringing  into  operation  the  Aberdeen  Act  of 
1845.  The  result,  moreover,  has  been  greatly  advan- 
tageous to  the  Brazilians,  not  only  by  freeing  them 
from  a  grievous  crime,  but  by  very  much  improving 


200  INTERNATIONAL   POLICE 

their  general  condition..."93   (The  Life  of  Vicount 
Palmerston,  by  Evelyn  Ashley,  II:   263-4). 

In  1862-1864,  the  British  Government  intervened  to 
prevent  the  importation  into  Peru  of  Polynesians  as 
laborers  under  conditions  of  extreme  cruelty  approxi- 
mating a  condition  of  slavery. 

93The  British  representative,  February  12,  1863,  addressed 
the  following  note  to  the  Brazilian  Government: 

"Her  Majesty's  Government  are  of  opinion  that  the  effect 
of  the  new  regulations  for  the  government  of  negroes  in  the 
Itapura  establishment  is,  practically  to  consign  to  forced  servi- 
tude for  six  years  men,  women,  and  children  who  are  free  ac- 
cording to  the  showing  of  the  Brazilian  authorities  themselves ; 
and  Her  Majesty's  Government  consequently  feel  themselves 
bound  to  require  that  these  Africans,  who  were  liberated 
under  British  auspices,  shall  not  be  subjected  to  the  regula- 
tions in  question."  (Parliamentary  Papers,  1863,  vol.  73, 
Correspondence  Respecting  Liberated  Slaves  in  Brazil, 
[3189].) 

Ashley,  writing  of  Lord  Palmerston 's  efforts  to  suppress  the 
slave  trade  and  to  discourage  slavery  says:  "For  nothing 
will  Lord  Palmerston  be  more  honorably  remembered  than 
for  his  long  and  succesful  efforts  for  the  suppression  of  the 
slave  trade  and  the  discouragement  of  slavery.  From  the 
moment  that  he  was  called  to  the  Foreign  Office  in  1830,  he 
entered  warmly  into  the  subject,  and  with  his  whole  heart 
labored  for  their  extinction.  He  sought  to  engage  all  maritime 
states  in  one  great  network  of  treaties  for  the  combined  an- 
nihilation of  this  nefarious  traffic  in  human  beings,  and  to  a 
large  extent  he  succeeded.  Some  of  the  Spanish  and  other 
diplomatists  used  to  be  quite  surprised  at  what  they  thought 
his  craze,  and  were  fain  to  humor  him  on,  what  they  consid- 
ered, so  insignificant  a  matter.  When  action  succeeded  to 
negotiation — as,  for  instance,  in  the  decisive  blow  dealt  in 
1840  at  the  Portuguese  slave  dealers  by  the  destruction  of 
their  barracoons  on  the  West  Coast  of  Africa — he  never  al- 
lowed any  consideration  for  the  susceptibilities  or  anger  of 
foreign  Governments  to  induce  him  to  halt  in  his  course.  On 
the  contrary,  when  the  countrjT,  sick  with  deferred  hopes  and 
aghast  at  the  expense  of  the  necessary  squadrons,  seemed,  at 
one  moment,  disposed  to  flinch,  his  earnest  language,  con- 
veying lofty  aspirations,  maintained  its  spirit  and  strength- 
ened it  for  renewed  efforts."  (Ashle}r's  Life  of  Palmerston, 
vol.  II,  p.  228.) 


SLAVE   TRADE  201 

The  British  Minister,  in  his  report  of  May  29,  1863, 
enclosed  a  copy  of  a  declaration  of  the  Diplomatic  and 
Consular  body  at  Lima,  in  regard  to  the  abuses  com- 
mitted on  the  Polynesians.  The  declaration  as  trans- 
lated into  English  read  as  follows : 

"The  Diplomatic  and  Consular  Corps  resident  in 
Lima  met  on  the  13th  of  May,  1863,  in  this  city,  and 
declared : 

1  *  1.  That  the  Diplomatic  and  Consular  Corps  deplore 
as  deeply  as  the  Government  of  Peru,  the  horrible 
abuses  committed  in  the  Polynesian  Islands  by  expe- 
ditions that  tried  to  obtain  laborers,  in  violation  of  the 
laws  and  of  the  licenses  given  to  bring  those  laborers 
to  this  Republic. 

"2.  That  they  are  happy  to  express  their  satisfaction 
at  the  suitable  measures  taken  by  the  Government  of 
Peru  to  prohibit  said  traffic,  carried  on  in  violation  of 
the  laws  and  of  the  licenses  conceded. 

"3.  That  they  are  also  happy  to  assure  their  respec- 
tive Governments,  that  the  measures  taken  by  the  Gov- 
ernment of  Peru  have  supported  morality,  justice,  and 
humanity. 

*  *  In  continuation,  they  decided  that  this  act  be  copied 
in  the  records  of  the  diplomatic  corps,  and  that  after 
being  signed,  a  copy  be  presented  to  his  Excellency  the 
Minister  of  Foreign  Affairs  and  President  of  the 
Council  of  Peru,  by  the  Charges  d 'Affaires  and  Con- 
suls-General of  France  and  the  United  States  of  Col- 
ombia ;  every  member  of  said  corps,  moreover,  sending 
a  copy  to  his  own  government. ' ' 

"(Signed) 

CHRISTOPHER  ROBINSON,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  the  United  States 
of  America. 

THOMAS  ELDREDGE,  Charge  d' Affaires  and  Consul- 
General  of  Hawaii. 


BARBAR/         VIE  COLLEGE  LIBRA&% 


202  INTERNATIONAL   POLICE 

EDMUND  P.  DE  LESSEPS,  Charge  d' Affaires  and 
Consul-General  of  France. 

WILLIAM  STAFFORD  JERNINGHAM,  Charge  d' Affaires 
and  Consul-General  of  Great  Britain. 

JUAN  DUARTE  DA  PONTE  RIBEYBO,  Charge  d' Af- 
faires of  Brazil. 

PBOSPERO  PEREIRA  GAMBA,  Charge  d' Affaires  and 
Consul-General  of  the  United  States  of  Colom- 
bia. 

CELEDONIO  URREA,  Charge  d' Affaires  of  Ecuador. 

J.  CANEVARO,  Consul-General  of  Italy. 

W.  BRAUNS,  Consul-General  of  Hamburgh. 

G.  ESCARDO,  Consul-General  of  the  Argentine  Con- 
federation. 

A.  EVARISTO  DE  ORNELLAS,  Consul-General  of  Por- 
tugal. 

J.  GILDEMEISTER,  Consul-General  of  Bremen. 

A.  GREULICH,  Consul  of  Frankfort. 

TH.  MULLER,  Consul  of  Prussia  and  Hanover. 

F.  OYAGUE,  Consul  of  Venezuela." 

In  the  form  of  a  congratulation  that  the  system  had 
been  abolished,  this  declaration  evidently  was  intended 
to  register  a  formal  disapproval  of  the  traffic.  Not- 
withstanding this,  the  British  Charge,  in  the  same 
note  in  which  he  enclosed  the  declaration  above  given 
remarked:  "None  of  these  being  British  subjects,  I 
do  not  see  how  far  I  am  authorized  in  interfering  ex- 
cept by  moral  reprobation  of  acts  evidently  inhumane 
in  their  consequences,  and  which  ought  to  be  properly 
punished  by  those  to  whom  it  legally  pertains  to  inflict 
the  deserved  castigation. " 

But  the  British  Minister  for  Foreign  Affairs  took  a 
different  view.  Lord  John  Eussell  in  his  instructions 
of  March  18, 1864,  wrote : 

"In  your  dispatch  of  the  12th  May  last  you  inclosed 
to  me  a  note  from  the  Peruvian  Government,  stating 
that  that  Government  had  abolished  the  system  which 
had  been  adopted  for  the  introduction  into  Peru  of 


SLAVE   TRADE  203 

natives  of  the  Polynesian  Islands,  and  which  had  given 
rise  to  such  horrible  abuses. 

"I  received  this  intelligence  with  satisfaction,  and 
approved  of  the  steps  taken  by  you  in  carrying  out  the 
instructions  which  you  had  received  from  me  in  the 
matter. 

' 'You  will  continue  to  bear  the  subject  in  mind,  as  it 
is  not  impossible  that,  although  the  system  has  been 
abolished,  steps  may  be  taken  indirectly  to  carry  out 
the  objects  contemplated  by  the  parties  concerned,  thus 
causing  fresh  evils  and  crimes.  In  such  case,  it  will 
be  your  duty  again  to  remonstrate  on  the  part  of  Her 
Majesty's  Government,  and  I  shall  be  glad  to  learn  that 
your  diplomatic  and  consular  colleagues  have  cooper- 
ated in  your  representation. ' '  (Parliamentary  Papers, 
1864,  vol.  66  [3307].) 

In  1888-89,  the  European  powers  instituted  a  pacific 
blockade  of  the  coasts  of  Zanzibar,  generally  stated  to 
have  had  the  purpose  of  preventing  the  exportation  of 
slaves  (see  T.  E.  Holland:  Studies  in  International 
Law,  p.  139-140 ;  Hogan :  Pacific  Blockade,  p.  130-137.) 

But  P.  L.  McDermott,  an  official  of  the  British  East 
Africa  Company  gives  the  following  account  based 
upon  the  official  documents  and  his  own  knowledge  of 
the  events  recorded:  "An  important  consequence  of 
the  troubles  on  the  German  coast  was  the  establishment 
by  Great  Britain  and  Germany  of  a  joint  blockade  of 
the  mainland  coast  of  the  Zanzibar  dominions  osten- 
sibly 'against  the  importation  of  arms  and  the  ex- 
portation of  slaves.'  In  a  despatch  from  the  Foreign 
Office,  dated  November  1st,  Colonel  Euan-Smith  was  in- 
formed 'that  Her  Majesty's  Government  had  agreed 
with  that  of  Germany,  in  view  of  the  rebellion  against 
his  (the  Sultan's)  authority  which  had  broken  out  on 
the  mainland  under  the  influence  of  the  slave-dealers, 
to  establish,  in  conjunction  with  his  Highness,  a  block- 


204  INTERNATIONAL   POLICE 

ade  over  the  coast  of  his  continental  dominions,  in 
order  to  cut  off  the  importation  of  munitions  of  war  to 
his  insurgent  subjects,  and  to  put  a  stop  to  the  ex- 
portation of  slaves.*  This  diplomatic  phraseology, 
however,  obscured  the  main  object  of  the  blockade  as 
well  as  the  causes  which  gave  rise  to  it.  The  rebellion 
had  broken  out,  not  against  the  authority  of  the  Sul- 
tan, but  against  that  of  the  German  Company,  and  had 
no  connection  —  indeed  had  not  before  been  alleged  to 
have  any  connection  —  with  the  business  of  the  slave- 
dealers.  Nor,  indeed,  from  the  antecedent  attitude  of 
German  subjects  on  the  mainland  (between  whom  and 
their  Government  natives  could  not  be  expected  to  dis- 
tinguish) towards  slavery  and  the  slave  trade  was 
there  any  reason  for  the  slave-dealers  to  apprehend 
much  interference  with  their  special  traffic  as  a  conse- 
quence of  the  establishment  of  German  administra- 
tion."94 

Even  before  the  states  of  Europe  had  formally  recog- 
nized the  illegality  of  slavery  itself,  they  had  given 
evidence,  by  their  practice  of  granting  asylum  to  fugi- 
tive slaves,  that  they  did  in  reality  so  regard  it. 

The  Act  of  Brussels,  relative  to  the  African  Slave 
Trade,  was  signed  July  2,  1890,  by  the  representatives 
of  the  principal  powers  and  the  states  most  concerned 
in  the  slave  trade.  The  preamble  declared  the  purpose 
of  the  stipulations  of  the  convention  as  follows  : 

"Equally  animated  by  the  firm  intention  of  putting 
an  end  to  the  crimes  and  devastations  engendered  by 
the  traffic  in  African  slaves,  of  effectively  protecting 
the  aboriginal  populations  of  Africa,  and  of  assuring 


"British  East  Africa,  or  Ibea,  A  History  of  the  Formation 
and  Work  of  The  Imperial  British  East  Africa  Company, 
compiled  with  the  authority  of  the  directors  from  official  docu- 
ments and  the  records  of  the  company,  by  P.  L.  McDermott, 
London,  1893,  p.  17-8. 


HUMANITARIAN  ASYLUM  205 

to  that  vast  continent  the  benefits  of  peace  and  civil- 
ization ; 

"Wishing  to  give  a  fresh  sanction  to  the  decisions 
already  taken  in  the  same  sense  and  at  different  periods 
by  the  powers;  to  complete  the  results  obtained  by 
them;  and  to  draw  up  a  collection  of  measures  guar- 
anteeing the  accomplishment  of  the  work  which  is  the 
object  of  their  common  solicitude;. .  " 

In  one  hundred  articles,  provision  is  made  for  carry- 
ing out  these  humanitarian  aims  of  the  signatory 
powers. 

This  important  convention  has  been  of  great  service 
in  facilitating  the  cooperative  action  of  the  powers  in 
putting  an  end  to  the  ancient  and  accursed  traffic  in 
slaves.95 

§  8(f).     HUMANITARIAN  ASYLUM" 

r     ''  :" 

FUGITIVE  SLAVES 

The  illegality  of  the  institution  of  slavery  under  in- 
ternational law  has  not  been  recognized  as  clearly  as 
has  the  illegality  of  the  slave  trade.  All  the  great  and 
all  the  civilized  states  have,  it  is  true,  abolished  slavery 
from  their  territory  until  it  is  now  at  last  restricted  to 

95In  the  case  of  the  Kongo,  discussed  above,  the  articles  of 
the  Brussells  Act  were  appealed  to  in  order  to  protect  the 
aborigines. 

Phillimore  (Commentaries,  vol.  I,  Part  III,  ch.  XVII)  has 
an  interesting  account  of  slavery  and  the  slave  trade. 

96We  have  departed  somewhat  from  the  rigid  logic  of  our 
classification  to  adopt  a  designation  which  cannot  be  consid- 
ered as  a  purpose  to  justify  intervention  at  all.  For  asylum 
is  one  of  the  means  of  carrying  out  humanitarian  interven- 
tion. Nevertheless,  in  practice,  the  asylum  which  is  afforded 
in  legations  and  warships  has  generally  been  restricted  to 
escaped  slaves  and  political  refugees,  so  that  we  might  have 
written  out  our  title  "as  humanitarian  intervention  for  the 
protection  of  escaped  slaves  and  political  refugees. ' ' 


206  INTERNATIONAL   POLICE 

Turkey,  Persia,  and  a  few  minor  Mohammedan  States ; 
but  slavery  of  itself  has  not  even  yet  been  formally 
declared  to  be  contrary  to  international  law.  It  is  still 
tolerated  in  those  backward  countries  either  because 
it  would  not  be  for  the  best  interests  of  the  population, 
including  the  slaves,  to  eliminate  it  forthwith,  or  be- 
cause the  powers  have  been  deterred  from  extirpating 
it  by  the  expense,  or  by  the  political  consequences  of 
the  reform.  Nevertheless,  we  may  safely  affirm  that 
slavery  to-day  is  contrary  to  international  law,  and  a 
justifiable  ground  for  humanitarian  intervention,  when- 
ever the  powers  are  assured  that  such  action  is  prac- 
ticable.97 


97Creasy,  discussing  the  report  of  the  Royal  Commission  on 
Fugitive  Slaves,  quotes  with  approval  the  opinion  of  Sir 
George  Campbell  that  ''the  time  has  come  when  this  country 
may  fairly  say  we  will  under  no  circumstances  aid  in  the  en- 
forcement of  slavery,  we  will  have  nothing  to  do  with  this 
nefarious  and  accursed  thing, ' '  and  adds :  ' '  Let  it  always  be 
remembered  that  the  institution  of  slavery  is  contrary  to  the 
first  principles  of  general  public  law,  as  taught  by  the  greatest 
founders  and  expounders  of  jurisprudence.  I  refer  to  the 
maxims  of  the  great  masters  of  the  Golden  Age  of  Roman  Law, 
that  slavery  is  contrary  to  Natural  Law ;  that  by  Natural  Law 
all  men  are  free  and  equal,  but  that  slavery  was  introduced  as 
a  general  institution  by  the  practice  of  nations.  Slavery  ex- 
isted for  the  reason  given  by  Grotius  for  the  temporary  ex- 
istence of  much  International  Law,  'quia  placuit  gentibus' 
[because  it  pleased  the  nations].  But  now  we  may  say  with 
honest  pride  that  'displicet  gentibus'  [it  displeases  the  na- 
tions]. We  may  not  be  justified  in  using  penal  or  coercive 
measures  towards  the  miserable  minority  that  yet  adhere  to  it ; 
but  we  are  fully  justified  in  declining  to  be  their  bailiffs  or 
accomplices.  The  evidence  collected  by  this  Royal  Commis- 
sion shows  conclusively  the  strong,  the  growing  sentiments  of 
civilized  States  that  slavery  is  no  longer  to  be  upheld  or  en- 
forced ;  that  when  a  slave  gains  access  to  a  free  country  '  the 
air  makes  free,'  and  that  the  public  ships  of  civilized  nations 
will  not  give  back  the  fugitive  slave,  who  once  has  gained  the 
shelter  of  the  free  flag,  to  punishment  or  to  bondage. 

"There  is  no  need  to  prepare  new  forms  of  reply  if  de- 
mands for  the  surrender  of  such  fugitives  should  again  be 


HUMANITARIAN  ASYLUM  207 

Although  the  great  states  have  not  intervened  with 
force  of  arms  to  put  an  end  to  slavery,  they  have  had 
recourse  to  a  limited,  we  might  say  a  negative  form  of 
intervention  which  has  consisted  in  granting  to  fugitive 
slaves  an  asylum  on  their  warships. 

More  than  two  centuries  ago,  we  find  isolated  instan- 
ces of  such  asylum,  which  were  then,  strictly  speaking, 
violations  of  the  law  of  nations,  although  they  were 
morally  justifiable  as  protests  against  a  law  out  of 
harmony  with  the  humane  sentiments  professed  by  all 
civilized  states. 

Richard  Hill,  envoy  to  the  Duke  of  Savoy,  in  a  letter 
from  Genoa,  dated  January  10,  1705,  writes:  "Sir,  it 
is  a  great  mortification  to  me,  and  to  all  the  Queen's 
officers  here,  to  see  one  of  the  Queen's  subjects,  and  a 
warrant  officer  in  the  fleet,  in  chains  in  the  Duke  of 
Tursis's  galleys.  This  poor  man  was  gunner  of  the 
Newport,  and  being  deluded  and  invited  into  a  galley, 
was  chained  to  an  oar,  and  being  treated  like  a  slave, 
because  one  of  the  Duke  of  Tursis's  slaves  had  de- 
serted, and  saved  himself  aboard  one  of  the  Queen's 
ships.  I  have  been  negotiating  this  poor  man's  liberty 
ever  since  I  am  here,  but  as  yet  without  success. "  (Cor- 
respondence of  Richard  Hill,  ed.  by  W.  Blackley,  Lon- 


made.  We  may  appeal  to  and  may  adopt  the  noble  words  of 
our  old  sea-hero,  Lord  St.  Vincent,  when  the  Lords  of  the  Ad- 
miralty in  1798  forwarded  to  him  the  complaints  of  some 
foreign  slave-owners,  whose  slaves  had  obtained  refuge  on 
board  of  British  men-of-war  in  the  port  of  Malta,  which  then 
was  foreign  territory.  Lord  St.  Vincent  told  the  British 
Admiralty,  'that  from  the  days  of  the  renowned  Blake  to  this 
hour  it  has  been  the  pride  and  glory  of  the  officers  of  His 
Majesty's  navy  to  give  freedom  to  slaves  wherever  they  car- 
ried the  British  flag;  and  God  forbid  that  such  a  Divine 
maxim  should  fade  under  me.'  '  (Quoted  in  report  on  Fugi- 
tive Slaves,  appendix,  p.  224,  Creasy:  First  Platform  of  In- 
ternational Law,  p.  696-7.) 


208  INTERNATIONAL   POLICE 

don,  1845,  Vol.  II,  p.  676-7.)  It  appears  from  the  cor- 
respondence that  the  fugitive  slave  above  referred  to 
was  treated  as  a  deserter,  and  at  the  first  port  touched 
at  was  given  his  liberty  and  a  passport  to  go  whither 
he  wished. 

In  the  course  of  time,  the  slave  trade  was  abolished, 
and  the  great  states  either  directed  their  officers  to 
grant  fugitive  slaves  an  asylum,  or  authorized  them  to 
use  their  discretion.  Sir  George  Campbell  was  cor- 
rect in  his  statement,  made  in  1876,  that  the  granting 
of  asylum  was  in  conformity  with  "the  great  majority 
and  weight  of  opinion  of  the  most  important  coun- 
tries."98 

In  1876,  public  opinion  was  deeply  stirred  to  learn 
that  the  instructions  issued  to  naval  officers  authorized 
them,  when  in  foreign  ports  of  slave  holding  states,  to 
deliver  over  to  the  local  authorities  slaves  who  had 
sought  an  asylum  under  the  British  flag.  The  conse- 
quence was  that  Disraeli's  Government  appointed  a 
remarkable  commission  of  statesmen  and  jurists  to 
investigate  and  report  upon  the  matter. 

This  Royal  Commission  on  Fugitive  Slaves,  in  the 
course  of  their  report,  stated:  "It  may,  we  conceive, 
be  safely  affirmed  that  a  ship  of  war  entering  the  waters 
of  a  friendly  state  is  by  the  common  practice  of  nations 
regarded  as  exempt,  speaking  generally,  from  the  juris- 
diction of  the  local  authorities,  and  is  at  the  same  time 
under  an  international  obligation,  speaking  generally, 
to  respect  the  local  law. 

"We  are  unable,  however,  to  report  that  the  extent 
of  the  immunity  on  the  one  hand,  or  the  limits  of  the 
obligation  on  the  other,  have  been  so  clearly  and  com- 


98See  dissenting  opinion,  Sir  George  Campbell,  Royal  Com- 
mission's Report  on  Fugitive  Slaves,  which  we  have  given  in 
the  preceding  note. 


HUMANITARIAN  ASYLUM  209 

pletely  settled  by  international  usage  that  they  can  be 
stated  with  absolute  confidence  and  precision.  There  is 
room  for  a  difference  of  opinion  with  respect  to  them, 
and  such  a  difference  of  opinion  exists.  In  like  manner, 
with  reference  to  the  principles  of  international  law 
applicable  to  the  reception  of  fugitiv.e  slaves,  a  differ- 
ence of  opinion  exists, ..." 

In  view  of  this  difference  of  opinion,  the  commission 
considered  it  best  "to  refrain  from  attempting  a  defi- 
nition." Instead  they  concurred  in  certain  recom- 
mendations and  they  expressed  their  belief  that  if  these 
recommendations  were  adopted"  the  measures  neces- 
sary for  giving  effect  to  them  would  not  afford  rea- 
sonable cause  of  complaint  to  foreign  countries." 

The  report  then  discusses  the  practice  of  other  na- 
tions with  reference  to  the  reception  of  fugitive  slaves. 
Portugal  and  Holland  surrendered  them;  Italy  and 
Germany  aparently  did  not;  while  the  Secretary  of 
the  Navy  of  the  United  States  gave  as  his  opinion  "that 
at  present,  no  officer  would  for  a  moment  think  of  giv- 
ing up  a  slave  who  had  taken  refuge  on  board  his  vessel 
in  order  that  he  might  return  to  his  condition  of  slav- 
ery. ' ' 

The  French  and  Russian  officers  were  allowed  a  wide 
discretion  and  responsibility.  From  evidence  laid  be- 
fore the  Commission,  it  appeared ' '  that  in  former  years 
Britain's  naval  officers  deemed  themselves  entitled  to 
exercise  a  wide  discretion  with  reference  to  cases  of 
slaves  seeking  refuge  on  board  their  ships."  Of  late 
years,  the  Commission  found  that  this  discretion  had 
been  limited,  but  that  the  instructions  issued  had  "ma- 
terially varied  in  character. ' ' 

Coming  to  the  main  point,  that  is,  "in  what  cases 
a  slave  ought  to  be  retained  on  board  a  ship, ' '  the  Com- 
mission reported:  "Naval  officers  should  be  instructed 

14 


210  INTERNATIONAL   POLICE 

that  although  ships  of  the  Royal  Navy  should  not  be 
made  a  general  asylum  for  fugitive  slaves,  they  are  not 
debarred  from  using  their  own  discretion  in  retaining 
such  fugitives  on  board  and  affording  them  protection 
on  the  principles  which  we  shall  proceed  to  recommend 
for  their  guidance." 

"In  the  exercise  of  this  discretion,  the  officer  should 
be  guided,  before  all  things,  by  considerations  of  hu- 
manity. Whenever  in  his  judgment  humanity  requires 
that  the  fugitive  should  be  retained  on  board,  as  in 
cases  where  the  slave  has  been,  or  is  in  danger  of  being 
cruelly  used, — he  should  retain  such  fugitive." 

The  fourth  of  the  recommendations  which  the  Com- 
mission made  in  the  belief  they  would  indicate  ' '  the  best 
course  to  promote  the  humane  and  enlightened  policy" 
which  Great  Britain  had  "consistently  pursued"  with 
a  view  to  the  mitigation  and  eventual  abolition  of 
slavery  is  a  repetition  of  what  has  been  quoted:  "In 
dealing  with  this  question,  the  officer  should  be  guided, 
before  all  things  by  considerations  of  humanity.  When- 
ever, in  his  judgment,  humanity  requires  that  the  slave 
should  be  retained  on  board, — as  in  cases  where  the 
slave  has  been,  or  is  in  danger  of  being  cruelly  used, — 
the  officer  should  retain  him.  In  other  cases  he  should 
do  so  only  where  special  reasons  exist."  (Parliamen- 
tary Papers,  1876,  vol.  28,  Report  of  the  Royal  Com- 
mission on  Fugitive  Slaves  [c.-1516]  p.  XVIII.) 

In  the  other  recommendations  of  the  Commission 
there  is  evident  the  same  humanitarian  purpose,  and 
the  same  evident  intention  to  authorize  the  naval  of- 
ficer to  intervene  to  the  extent  of  affording  an  asylum 
when  necessary  to  protect  the  fugitive  slave  from  in- 
humane treatment. 

On  the  other  hand,  the  report  states :  "Naval  officers 
should  understand  that,  whilst  entrusting  them  with 
this  discretion,  their  government  does  not  claim  a  right 


HUMANITARIAN  ASYLUM  211 

to  interfere  actively  with  the  institutions  of  slavery 
in  countries  where  it  is  upheld  by  the  local  law, ..." 
and  in  another  place  the  Commission  emphasized  the 
inconvenience  which  would  result  from  such  an  at- 
tempt, and  they  consider  that  "...  it  must  always  be 
remembered  that  states  within  whose  territories  slav- 
ery continues  to  exist  can  refuse  to  admit  British  ships 
of  war  into  their  ports  and  waters,  should  they  deem 
this  extreme  measure  necessary  to  the  protection  of 
national  or  private  interests."99 

The  distinguished  group  of  jurists  who  signed  the  Re- 
port on  Fugitive  Slaves  recommending  that  the  Brit- 
ish officers  should  be  authorized  to  offer  an  asylum 
when  necessary  to  prevent  the  cruel  treatment  of  the 
fugitive  slave  believed  apparently  that  the  granting 
of  this  asylum  would  be  a  violation  of  "the  theory 
of  international  law. ' n  But  like  practical  Englishmen, 
they  threw  over  their  theory  when  it  proved  embar- 
rassing. 

If  the  Commission  were  right  in  adhering  to  the 
theory  of  the  perfect  right  of  every  state  to  do  as  it 


"This  was  in  conformity  with  the  above-quoted  views  of  the 
majority  of  the  Commission  relative  to  the  status  of  public 
vessels  in  foreign  ports. 

*The  fifth  recommendation  of  the  report  reads  as  follows : 
"5.  Respect  for  the  local  law  ought  not,  however,  to  be  car- 
ried to  such  an  extent  as  to  make  British  naval  officers  acces- 
sory to  acts  of  cruelty ;  and  in  cases  in  which  they  have  rea- 
son to  believe  that  such  acts  have  been,  or,  unless  protection 
is  afforded  him,  probably  will  be,  practiced  upon  a  slave  found 
on  board  their  ships,  or  asking  permission  to  come  on  board, 
they  ought  to  be  authorized  to  afford  protection  to  the  slave, 
although  such  conduct  may  be  opposed  to  the  theory  of  inter- 
national law.  A  rigid  adherence  to  that  theory  by  the  com- 
manding officers  of  British  ships  in  foreign  territorial  waters, 
in  all  cases  whatever,  would  be  neither  practicable  nor  de- 
sirable. ' ' 


212  INTERNATIONAL   POLICE 

deemed  best  within  its  own  territory,  then  Lord  Chief 
Justice  Cockburn,  a  member  of  the  Commission,  was 
consistent  in  refuting  the  conclusion  that  the  "harbor- 
ing" of  a  slave  "was  not  a  violation  of  the  local  law," 
and  we  can  sympathize  with  the  separate  opinion  ex- 
pressed by  six  distinguished  members  of  the  Commis- 
sion,3 that  Great  Britain  had  "no  right  to  force  its 
own  laws  on  an  independent  state,  nor  (except  in  such 
extreme  cases  as  those  hereinafter  referred  to)  to  au- 
thorize its  subjects  to  violate  the  law  of  the  latter  be- 
cause it  disapproves  of  that  law. . .  " 

Following  out  consistently  the  theory  that  each 
sovereign  state  was  supreme  within  its  jurisdiction, 
they  were  logical  in  considering  that  "although  slavery 
had  happily  become  abhorrent  to  the  British  nation, 
and  has  been  abolished  in  British  territories,  yet  the 
rights  conferred  upon  the  owners  of  slaves  by  the 
laws  of  their  own  countries  have  been,  on  more  than 
one  occasion  since  the  abolition  of  slavery  by  this  coun- 
try, recognized  and  enforced  by  English  courts  of 
justice.  Upon  this  fact,  as  well  as  upon  the  principles 
of  international  law,  we  think  that  the  commanding  of- 
ficers of  British  ships  of  war,  in  foreign  territorial 
waters  would  do  wrong  if  they  afforded  protection  to 
all  slaves  indiscriminately  who  might  be  found  on  board 
their  ships. ' ' 

But  in  the  conclusion  which  they  reach,  and  in  the 
recommendation  with  which  they  concur  the  Commis- 
sioners desert  logic,  and  declare  that  "a  rigid  adher- 
ence to  that  theory  by  the  commanding  officers  of  Brit- 
ish ships  in  foreign  territorial  waters,  in  all  cases  what- 


2See  separate  opinion  filed  by  the  Lord  Chief  Justice  and 
printed  with  the  report. 

8A.  E.  Cockburn,  T.  D.  Archibald,  Alfred  Hy.  Thesiger,  H. 
T.  Holland,  J.  F.  Stephen,  H.  C.  Rothery. 


HUMANITARIAN  ASYLUM  213 

ever,  would  be  neither  practicable  nor  desirable." 
(5th  Recommendation,  quoted  in  the  preceding  note.) 
It  would  seem  that  a  theory  of  international  law,  the 
observance  of  which  in  so  important  a  matter  was 
neither  practicable  nor  desirable,  should  be  modified 
and  be  made  to  recognize  that  humanitarian  interven- 
tion is  a  just  ground  for  overriding  local  regulations 
when  the  latter  are  not  in  conformity  with  those  princi- 
ples of  justice  which  are  recognized  and  enforced  by 
all  the  civilized  states. 

Sir  Robert  Phillimore,  Professor  Mountague  Ber- 
nard, and  Sir  Henry  S.  Maine,  three  international 
jurists  of  high  repute,  who  were  members  of  the  Royal 
Commission  on  Fugitive  Slaves,  did  not  adopt  the  rea- 
soning of  the  Commission,  although  they  signed  the 
report  and  joined  jn  approving  the  recommendations 
which  it  contained.  They  filed  a  separate  opinion  ex- 
pressing their  conviction  that  the  officer  who  gave  an 
asylum  to  a  fugitive  slave  would  not  violate  inter- 
national law,  nor  the  local  law  to  which  he  could  not  be 
considered  as  subjected.  The  importance  of  this  opin- 
ion justifies  us  in  laying  it  before  the  reader: 

"We  should  have  been  content  to  sign  the  report 
without  expressing  any  opinion,  beyond  what  is  con- 
tained in  it,  on  the  first  question.  But  since  it  has  been 
thought  right  that  opinions  should  be  expressed  on  that 
point,  we  will  state  the  considerations  which  in  our 
view  justify,  so  far  as  international  law  is  concerned, 
the  conclusions  of  the  report,  confining  ourselves  to 
such  considerations,  and  not  entering  into  a  detailed 
examination  of  precedents  or  authorities. 

"At  the  same  time,  we  think  that  a  careful  and  dis- 
criminating examination  of  such  authorities  would  sup- 
port the  views  we  are  about  to  express. 


214  INTERNATIONAL  POLICE. 

"The  question  is  substantially  this:  what  instruc- 
tions the  government  may,  without  doing  violence  to 
any  international  obligation,  give  to  its  officers  respect- 
ing the  reception  of  fugitive  slaves  in  foreign  waters! 

'*[!.]  It  is  true,  as  a  general  proposition,  that  a 
naval  officer,  entering  with  the  ship  under  his  command 
the  waters  of  a  friendly  state,  ought  to  respect  the 
local  laws,  and  to  refrain  from  lending  his  assistance 
to  any  violation  of  them.  It  is  right  that  he  should 
receive  instructions  to  this  effect,  and  such  instructions 
British  officers  now  receive.  They  are  directed  by  the 
Queen's  Regulations  to  'cause  all  those  under  their 
orders  to  show  due  deference  to  the  established  rights, 
ceremonies,  customs,  and  regulations'  of  the  places 
they  have  occasion  to  visit ;  and  they  are  prohibited  in 
general  from  receiving  on  board,  whilst  lying  in  the 
ports  of  a  foreign  country,  persons  who  may  seek  ref- 
uge for  the  purpose  of  evading  the  local  laws  to  which 
such  persons  may  have  become  amenable. 

*  *  The  foregoing  proposition,  however,  is  only  a  gen- 
eral expression  of  what,  in  given  circumstances,  one 
maritime  state  may  fairly  and  reasonably  expect  at 
the  hands  of  another ;  and  it  would  be  an  error  to  re- 
gard it  as  a  canon  of  international  law,  absolute,  inflex- 
ible, and  admitting  no  qualification.  It  admits,  and 
indeed  requires,  at  least  one  material  qualification. 
Where  the  execution  of  the  local  law  would  be  plainly 
repugnant  to  humanity  or  justice,  the  sovereign  with 
whose  commission  the  ship  sails  cannot  reasonably  be 
held  bound  to  instruct  his  officers  to  enforce  the  law, 
or  permit  it  to  be  enforced,  on  board  of  her.  He  may 
rightly  instruct  them  not  to  enforce  it  there,  and  not  to 
permit  it  to  be  enforced. ' ' 

"It  is  a  general  assumption,  on  which  governments 
must  habitually  act,  that  the  laws  of  civilized  states, 
framed  to  secure  public  order  and  private  rights,  will 


HUMANITAEIAN  ASYLUM  215 

not  so  operate  as  to  be  in  conflict  with  humanity  or 
justice.  But  this  general  assumption  must  and  does 
sometimes  give  way,  whether  from  the  necessary  im- 
perfection of  human  laws,  or  from  particular  defects 
which  cannot  be  immediately  removed  in  the  institu- 
tions of  particular  states,  or  from  real  differences  of 
national  sentiment  as  to  what  is  humane  or  just — dif- 
ferences which  the  progress  of  civilization,  tending 
though  it  does  continually  to  produce  a  general  uni- 
formity, has  not  yet  entirely  effaced.  In  cases  of  this 
kind, — which  though  exceptional,  are  by  no  means 
rare — it  is  not  a  sufficient  answer  to  point  to  the  local 
law  and  to  the  sovereign  authority  which  enacted  it. 
Where  British  subjects  are  interested,  this  country 
deems  it  no  infringement  of  an  international  obliga- 
tion to  insist,  against  the  local  law,  on  its  own  view  of 
what  justice  or  humanity  demands,  and  even,  if  need 
be,  to  exact  redress  by  force.  Where  no  British  inter- 
est is  involved,  the  British  Government  has  the  right 
to  say  at  least  that  the  authority  delegated  by  it  to  its 
officers  shall  not  be  used  to  do  what  is  plainly  inhuman 
or  unjust. 

"This  qualification  of  the  general  rule  is  demanded 
by  the  national  self-respect  of  every  state  which  com- 
missions a  ship  of  war;  and  it  is  consistent  with  the 
ordinary  principles  on  which  the  intercourse  of  civil- 
ized states  proceeds. 

' l  That  there  is  no  unqualified  obligation  to  assist  or 
permit  on  board  a  ship  of  war  the  enforcement  of  the 
local  law  is  assumed  in  the  instructions  which  British 
naval  officers  receive  with  regard  to  political  refugees, 
and  has  been  assumed  in  the  cases  where,  before  the 
issue  of  those  instructions,  the  refusal  to  give  up  a 
refugee  has  been  approved  by  the  British  Government. 
A  political  refugee  may  be  an  object  of  partisan  ran- 
cor and  passion ;  but  he  is  also  commonly  a  criminal  in 


216  INTERNATIONAL   POLICE 

the  eye  of  the  local  law,  the  administration  of  which  is 
in  the  hands  of  a  government  inimical  to  him. 

"Laws  which  uphold  slavery  are  local  not  only  in 
the  sense  that  they  have  legal  force  in  particular  coun- 
tries, but  in  the  further  sense  that  they  create  a  status 
not  recognized  in  other  countries.  The  right  to  own 
a  slave  as  property  in  a  slave-holding  country  may  be 
recognized  elsewhere,  and  it  has  been  recognized  in 
English  courts  of  justice ;  but  the  right  to  compel  the 
obedience  of  a  slave  cannot  be  enforced  in  any  place 
where  slavery  is  not  legal.  But  this  is  far  from  being 
the  whole  account  of  the  matter,  though  it  may  perhaps 
be  all  that  a  court  of  law  could  properly  take  notice  of. 
The  state,  in  judging  what  instructions  (as  between 
itself  and  other  states)  it  may  rightly  give  to  its  of- 
ficers, is  not  confined  to  the  considerations  which  might 
be  urged  before  a  court  of  law.  Slavery  is  not  only  an 
institution  of  this  strictly  local  character,  but,  so  far  as 
it  operates  to  keep  human  beings  forcibly  and  against 
their  will  in  the  condition  of  mere  objects  of  property, 
is  regarded  by  nearly  the  whole  of  Christendom  as  re- 
pugnant to  justice.  In,  Brazil  and  Cuba  it  survives 
only  because  the  total  and  immediate  abolition  of  it — 
involving,  as  this  would,  the  destruction  of  a  large 
mass  of  proprietary  rights — has  not  hitherto  been 
found  practicable.  The  deliberate  conviction  of  Great 
Britain  on  the  subject  has  been  shown  in  many  ways, 
by  her  legislation,  by  the  sacrifices  she  has  undergone, 
by  the  uniform  and  unremitting  exertions  of  her  Gov- 
ernment. It  is  an  institution  also  which,  from  its  na- 
ture, cannot  by  any  restraints  of  law  or  custom  be  so 
regulated  and  controlled  as  to  prevent  it  from  some- 
times operating  in  ways  repugnant  to  humanity,  and 
that  not  alone  by  the  infliction  of  mere  bodily  suffer- 
ing. 


HUMANITARIAN  ASYLUM  217 

"  International  law,  it  is  to  be  observed,  is  not  sta- 
tionary ;  it  admits  of  progressive  improvement,  though 
the  improvement  is  more  difficult  and  slower  than  that 
of  municipal  law,  and  though  the  agencies  by  which 
change  is  effected  are  different.  It  varies  with  the 
progress  of  opinion  and  the  growth  of  usage ;  and  there 
is  no  subject  on  which  so  great  a  change  of  opinion  has 
taken  place  as  slavery  and  the  slave  trade.  Bynker- 
shoek,  in  one  of  his  latest  works,  published  in  1737, 
maintains  that,  as  a  conqueror  may  in  the  exercise  of 
an  extreme  right  do  what  he  pleases  with  his  captive, 
he  may,  though  the  practice  has  fallen  into  desuetude, 
put  him  to  death,  or,  as  a  consequence  of  that  right, 
may  sell  him  into  slavery.  (Quaest,  Juris  Publici,  Bk. 
i.  c.  3.)  Such  a  doctrine  would  now  be  held  not  merely 
unlawful,  but  atrocious ;  and  the  trade  in  negro  slaves, 
which  was  formerly  competed  for  as  a  legitimate  source 
of  profit,  has  in  a  great  number  of  treaties  been  as- 
similated to  the  crime  of  piracy. 

"  These  considerations  are  sufficient  to  justify  Great 
Britain  in  instructing  her  officers  not  to  enforce  slave 
laws,  or  permit  them  to  be  enforced,  on  board  her  ships 
of  war  in  foreign  territorial  waters,  either  altogether 
or  in  particular  circumstances  in  which  the  claims  of 
humanity  or  justice  assert  themselves  more  plainly 
and  imperatively  than  in  others.  Which  of  these  two 
courses  she  should  adopt  may  be  a  question  of  pru- 
dence, and  perhaps  also  of  humanity  itself ;  but  we  do 
not  think  it  can  be  solved  by  reference  to  a  positive  rule 
of  international  law.  Against  either  of  them  slave- 
holding  states  have,  as  is  pointed  out  in  the  report,  an 
extreme  remedy  in  the  power  of  excluding  British  ves- 
sels from  their  ports.  But  in  exerting  that  power, 
should  they  deem  it  necessary  to  do  so,  they  would  be 
protecting  themselves  or  their  subjects,  not  against 


218  INTERNATIONAL   POLICE 

a  violation  of  international  law,  for  there  would  be 
none,  but  only  against  apprehended  loss. 

"It  is  difficult,  no  doubt,  in  practice,  to  draw  with 
theoretical  precision  the  line  of  demarcation  between  an 
active  interference  with  slavery  and  the  refusal  to  en- 
force the  master's  right  over  his  slave.  An  officer  who 
declines  to  give  up  a  fugitive  does  to  some  extent  inter- 
fere with  the  local  institution  of  slavery.  He  not  only 
protects  from  injury,  but  takes  away  from  the  slave- 
owner, the  terrified  man  or  helpless  girl  who  by  the 
local  law  is  a  marketable  object  of  property;  and  it 
makes  little  practical  difference — to  the  owner  none — 
whether  the  slave  has  scrambled  on  board  with  the 
officer's  leave  or  without  it.  But  in  these  cases  it  may 
fairly  be  said  that  he  interferes  no  more  than  he  in- 
evitably must  unless  he  is  to  be  actively  instrumental 
in  forcing  the  fugitive  back  into  slavery ;  if  he  were  to 
go  further,  to  incite  slaves  to  escape,  hold  out  to  them 
inducements  to  do  so,  or  use  force  or  contrivance  to 
liberate  them,  this  would  be  an  interference  of  a  dif- 
ferent kind.  In  the  Recommendations  of  the  Report 
this  distinction  is  kept  in  view,  and  an  officer  who 
should  be  careful  to  observe  it  would  find  little  difficulty 
in  doing  so. ' ' 

Turning  next  to  a  careful  consideration  of  the  jurid- 
ical situation  of  public  vessels  in  foreign  ports,  the 
separate  statement  of  opinion  concludes  as  follows  :* 


4  [We  have  omitted  from  the  text  Section  II  of  this  separate 
statement  of  opinion  which  deals  with  the  so-called  extra- 
territorial rights  of  public  vessels  in  foreign  ports,  but  we  in- 
clude it  in  this  footnote  because  of  its  juridical  value.] 
"II.  In  the  foregoing  remarks  it  has  been  assumed, — 
"1.  That  a  commanding  officer  on  board  his  ship,  even  when 
she  is  lying  within  the  territorial  waters  of  a  foreign  State, 
is  to  be  regarded,  not  as  in  subjection  to  the  authority  and 
laws  of  that  state,  but  exclusively  as  a  subject  of  his  own  Sov- 
ereign and  an  officer  of  his  own  government. 


HUMANITARIAN  ASYLUM  219 

"[III.]  In  conclusion,  we  are  of  opinion  that  Her 
Majesty's  Government  may,  without  transgressing  any 
international  obligation,  give  such  instructions  to  of- 
ficers commanding  Her  Majesty's  ships  with  respect 
to  the  disposal  of  fugitive  slaves  who  may  seek  refuge 
on  board  their  vessels  as  the  Government  may  judge 
most  consonant  to  humanity  and  prudence. 

"  Officers  acting  on  such  instructions  would  be  re- 
sponsible to  the  authority  from  which  they  received 
their  orders,  and  would  not  be  responsible  to  the  for- 
eign territorial  authority. 

"Her  Majesty's  Government  could  not  deny  to  any 
foreign  Sovereign  the  right  to  interdict  the  entrance  of 


"2.  That  the  laws  of  the  foreign  State  cannot  be  forcibly 
executed  on  board  unless  by  his  order  or  permission  as  com- 
manding officer. 

"It  is  necessary  to  say  a  few  words  on  these  two  assump- 
tions, and  in  doing  so  to  advert  to  the  distinction  between  a 
ship  owned  by  private  persons  and  employed  by  them  for  pur- 
poses of  trade  or  pleasure,  and  a  ship  commissioned  by  the 
State  and  employed  in  the  public  service. 

"A  private  vessel  is  not,  according  to  the  present  practice 
of  States,  what  a  ship  has  been  called  by  a  great  authority 
(Lord  Stowell)  'a  mere  moveable. '  She  is  also  a  floating  habi- 
tation, subject  to  the  law  and  jurisdiction  of  the  State  under 
whose  flag  she  sails, — a  jurisdiction  which  covers  all  persons 
on  board,  of  whatever  nationality,  enjoying  the  protection  of 
the  flag,  which  follows  her  everywhere,  and  is  not  interrupted 
even  when  she  is  in  the  territorial  waters  of  a  foreign  Power.a 
According  to  French  authorities  and  French  practice,  this 
jurisdiction  is  treated  as  exclusive  in  all  such  matters  as  do  not 
affect  the  rights  of  persons  not  belonging  to  the  ship,  nor  the 
peace  and  order  of  the  port.  But  in  all  other  matters,  if  not  in 
these,  it  is  universally  admitted  that  the  ship  and  all  on  board 
of  her  are  amenable  to  the  law  of  the  country  in  whose  waters 
she  happens  to  be,  although  the  question  may  arise  (as  it  has 
lately  arisen)  whether  that  law  ought  to  be  held  enforceable 
in  the  case  of  vessels  navigating  within  the  range  of  coast- 
water  and  not  lying  in  port. 


«Reg.  v.  Sattler,  D.  and  B.  C.  C.  525;    Keg.  v.  Anderson,  1  C.  C.  B. 
Law  Rep.,  161. 


220  INTERNATIONAL   POLICE 

British  ships  of  war  into  his  ports,  although  it  might 
not  admit  that  the  exercise  of  the  right  was  under  the 

"A  person  therefore  who  enters  a  foreign  port  in  a  private 
ship  becomes,  while  there,  temporarily  a  subject  of  the  for- 
eign State,  owing  a  'local  allegiance'  to  its  laws,  though  he 
is  also,  when  on  board,  subject  to  the  jurisdiction  of  the  coun- 
try which  extends  to  him  the  protection  of  its  flag.  He  can- 
not therefore  refuse  to  obey  the  local  laws,  for  subjection  to  a 
law  allows  no  discretionary  choice  between  obeying  and  not 
obeying  it.  Nor  can  the  claim  of  the  local  officers  of  justice 
to  board  the  ship,  search  her,  and  take  out  of  her  anyone  who 
has  become  amenable  to  those  laws  be  disputed  or  resisted. 

"Ships  of  war,  on  the  other  hand,  have  a  recognised  im- 
munity, which  places  them,  when  within  foreign  waters,  in  a 
condition  materially  different  from  that  of  a  private  and  un- 
commissioned vessel.  So  much  as  this  is  admitted  on  all  hands. 
A  long  succession  of  writers,  English,  French,  German,  and 
American,  referring  to  this  immunity  as  established  by  usage 
and  general  consent,  have  described  it  as  an  exemption  from 
the  'law,'  the  'jurisdiction,'  or  the  'law  and  jurisdiction,' 
of  the  foreign  State,  or  by  other  equivalent  phrases ;  language 
which,  though  leaving  somewhat  to  argument  and  inference, 
has  nevertheless  a  plain  and  natural  meaning.1*  Some  of  these 
writers  have  been  judges,  some  diplomatists,  one  an  officer  in 
the  naval  service  of  France,  whose  book  has  a  deserved  repu- 
tation for  lucidity  of  statement  as  well  as  for  sense  and  moder- 
ation. Whatever  value  we  may  be  disposed  to  assign  to  testi- 
mony of  this  kind,  it  is,  for  the  last  half  century  at  least,  sub- 
stantially unanimous.  The  general  practice  of  Governments, 
and  the  general  belief  or  impression  current  in  every  naval 
service,  appear  to  have  been  in  accordance  with  it.  No  one, 
it  is  true,  disputes,  or  has  disputed,  the  right  of  every  sov- 
ereign State  to  exclude  foreign  ships  of  war  altogether  from  its 
ports,  or  to  attach  such  conditions  as  it  may  think  expedient 
to  the  admission  of  them.  During  maritime  wars  very  strin- 
gent conditions  have  been  frequently  imposed  by  neutral  Pow- 
ers on  the  admission  of  belligerent  ships :  for  example,  in  the 
more  recent  of  such  wars,  when  ships  of  both  belligerents  have 
been  in  a  British  port  at  the  same  time,  one  has  not  been  al- 

bOrtolan:  Diplomatic  de  la  Mer,  L.  II,  ch.  x,  xiii;  Heffter:  Euro- 
paisches  Volkerrect  der  Gegenwart,  s.  79 ;  Bliintschli :  Droit  International 
Codifi6,  art.  321;  Calvo:  Droit  International,  I,  383,  2nd  Ed.;  Twiss: 
Law  of  Nations,  1,  228;  Woolsey:  International  Law,  a.  54;  Halleck: 
International  Law,  p.  171;  Field:  Draft  Outlines  of  an  International 
Code,  art.  309.  For  the  opinion  of  Kent,  see  Commentaries,  156  and 
note. 


HUMANITARIAN   ASYLUM  221 

circumstances  necessary  or  reasonable,  and  might  in- 
deed, should  it  think  proper  to  do  so,  reciprocally  ex- 
clude from  its  own  ports  the  vessels  of  any  Power 
which  had  recourse  to  this  measure." 

Slavery  has  given  rise  to  other  passive  or  negative 
forms  of  intervention.  The  cooperative  action  of  ex- 
tradition has  sometimes  been  refused  in  the  case  of 


lowed  to  put  to  sea  until  after  the  lapse  of  twenty-four  hours 
from  the  departure  of  the  other.  It  need  hardly  be  said  that 
regulations  as  to  mooring  and  anchoring,  observance  of  sani- 
tary precautions,  and  the  like,  are  everywhere  usual,  though 
not  everywhere  the  same.  Nor  has  it  been  contended  that  a 
Sovereign,  by  permitting  the  entrance  of  a  foreign  vessel, 
abandons  the  right  to  repel  or  arrest  by  force,  if  need  be, 
actual  or  threatened  violence  towards  his  subjects,  or  those 
under  his  protection;  and  this  right  has  been  occasionally 
exerted.  But  we  do  not  know  of  an  instance  within  this  period 
in  which  a  right  has  been  conceded  or  asserted  to  take  a  person 
or  thing  from  on  board  a  ship  of  war  by  legal  process  with- 
out leave  of  the  officer  in  command,  or  to  hold  the  officer,  or 
any  of  those  under  his  command,  personally  amenable  to  the 
local  jurisdiction  for  acts  done  on  board  in  contravention  of  a 
local  law.  Nor  are  we  aware  that  this  state  of  things  has  pro- 
duced any  practical  inconvenience. 

"It  has  been  suggested  that,  whilst  the  vessel  herself  as  an 
object  of  property  should  be  free  from  process,  and  the  disci- 
pline of  the  ship  as  well  as  the  cognizance  of  any  offences 
which  one  member  of  the  ship's  company  might  commit 
against  another  should  be  left  to  her  own  authorities,  no 
further  exemption  should  be  allowed.  The  condition  of  a  man- 
of-war  seeking  the  accommodation  of  a  foreign  port  would 
then  be  not  very  different  from  that  which  the  law  of  France 
assigns  to  a  private  vessel,  except  as  regards  the  immunity 
from  proceedings  in  rent.  She  would  be  liable  to  be  boarded 
and  searched  by  the  local  authorities :  persons  who  had  sought 
refuge  in  her  either  from  slavery  or  from  the  rage  of  a  vic- 
torious faction  could  be  seized  and  carried  ashore,  even  if 
they  had  come  on  board  in  a  place  out  of  the  jurisdiction :  the 
captain  himself  indeed  might  be  taken  from  his  own  quarter- 
deck on  a  charge  of  having  offended  against  some  local  regula- 
tion. A  privilege  so  curtailed — if  it  be  a  privilege  at  all — ap- 
pears to  be  but  imperfectly  adapted  for  securing  to  maritime 
Powers  undivided  control  over  their  ships  of  war  or  for  pre- 
venting hazardous  conflicts  of  authority.  But,  whether  ex- 


222  INTERNATIONAL   POLICE 

slaves.  The  case  of  John  Anderson  is  an  example  of 
this  form  of  humanitarian  intervention. 

"In  September,  1853,  John  Anderson,  a  negro  slave, 
born  in  the  United  States,  ran  away  from  his  master. 
About  three  weeks  later,  he  met  and  spoke  to  a  planter 
named  Diggs,  who  recognized  him.  Anderson  asked 
Diggs  where  Charles  Givens  lived,  saying  he  belonged 
to  M 'Donald,  and  wanted  Givens  to  buy  him  that  he 

pedient  or  not,  it  is  certainly  different  from  the  understand- 
ing which  we  believe  to  exist  universally  at  present,  and  on 
which  naval  officers  and  their  Governments  have  thought  them- 
selves entitled  to  rely. 

"This  suggestion  has  been  urged  by  two  Italian  jurists, 
Lampredi  and  Azuni.  'A  nation,'  says  the  former,  'which 
resolves  to  act  vigorously  will  not  make  the  least  difference 
between  a  merchant  vessel  and  a  ship  of  war,  whenever  long 
custom  or  a  privilege  accorded  has  not  established  the  con- 
trary, and  thus  set  a  limit  to  the  exercise  of  its  sovereign 
rights.'0  But  he  admits  himself  to  be  in  opposition  to  many 
writers,  and  his  opinion  does  not  appear  to  be  shared  by  the 
present  Italian  Government.*1 

"Lampredi,  in  the  chapter  referred  to,  asserts  the  positions 
that  a  ship  at  sea  is  to  be  regarded  as  a  mere  vehicle 
(vettura  per  mare),  and  two  ships  meeting  one  another  at  sea 
as  vehicles  meeting  in  an  unoccupied  desert ;  and  hence  that 
the  persons  on  board  are  not  protected  by  the  flag,  but  solely 
as  individuals  by  the  law  of  nature,  which  makes  every  man 
free  and  independent  except  in  regard  to  his  legitimate  Sov- 
ereign. It  is  evident  that  according  to  these  positions  a  slave, 
a  refugee,  a  person  liable  to  conscription  or  impressment,  or 
any  other  subject,  might  be  forcibly  taken  out  of  a  foreign 
ship  by  the  Power  claiming  him  not  only  in  territorial  waters 
but  on  the  high  seas. 

"A  like  limitation  of  the  privilege  is  favored  by  Pinheiro- 
Ferreira.  But  this  author,  an  avowed  theorist,  maintains  also 
(in  his  Annotations  on  Martens)  that  ambassadors  should  be 
deemed  liable  to  criminal  and  civil  process.  It  has  some  sup- 
port likewise  in  a  dictum  of  Mr.  Justice  Best  in  'Forbes  v. 
Cochrane,'  and  in  the  far  greater  authority  of  Lord  Stowell.e 

cDel  Commercio  dei  Popoli  Neutral!  in  Tempo  di  Guerra,  ch.  x  (pub- 
lished in  1788). 

dLetter  of  the  Italian  Minister  of  Foreign  Affairs  in  appendix  [of 
the  Report  of  the  commission]. 

cLetter  in  Appendix  [of  the  Report  of  the  commission]. 


HUMANITARIAN  ASYLUM  223 

might  be  near  his  wife.  Diggs  charged  him  with  being 
a  runaway  slave,  and  refused  to  let  him  go.  The  law  of 
Missouri  declared  that  any  slave  found  more  than 
twenty  miles  from  his  home  should  be  deemed  a  runa- 
way, and  that  any  person  might  apprehend  a  negro 
being,  or  suspected  of  being,  a  runaway;  and  it  pro- 
vided a  reward  for  so  doing.  Diggs,  however,  told  An- 
derson to  come  and  get  his  dinner,  and  he  would  then 


It  must  be  observed,  however,  that  that  whole  subject  of  the 
national  sovereignty  over  ships  has  undergone  much  discus- 
sion, not  only  since  Lampredi  but  since  the  time  of  Lord  Stow- 
ell ;  and  that  the  effect  of  those  discussions  has  been  to  carry 
the  jurisdiction  of  a  State  over  vessels  entitled  to  use  its  flag 
to  a  more  advanced  point,  and  place  it  on  a  firmer  basis,  than 
it  had  reached  in  1820. 

"It  may  be  that  should  the  extent  of  the  privilege  ever  be- 
come a  question  in  courts  of  law,  some  qualifications  of  it  might 
be  allowed,  the  necessity  or  expediency  of  which  there  has  not 
hitherto  been  occasion  to  consider.  A  concurrent  jurisdiction 
might  be  held  to  exist  for  some  purposes,  as  in  matters  of  civil 
status.  Courts  of  law  are  accustomed,  in  dealing  with  such 
questions,  to  proceed  very  much,  as  speculative  writers  do,  on 
considerations  of  general  convenience;  and  some  questions 
might  easily  be  suggested  as  to  which  it  would  be  hazardous  to 
predict  what  answer  they  would  receive.  But  the  matter  re- 
ferred to  this  Commission  is  one  upon  which  any  decisions 
that  could  be  pronounced  by  courts  of  law  could  have  but  an 
indirect  bearing.  As  between  State  and  State,  the  right  which 
every  naval  commander  in  foreign  waters  has  hitherto  be- 
lieved himself  to  possess  of  saying, '  My  ship  is  the  castle  of  my 
sovereign  under  my  command ;  no  one  enters  it,  and  no  force 
can  be  exerted  in  it,  unless  by  my  permission;  and  for  the 
orders  I  give  here  I  am  not  amenable  to  any  foreign  juris- 
diction,' appears  to  us  to  be  sustained  by  usage  and  opinion, 
and,  we  may  add,  by  convenience.  The  privilege  of  the  ship 
is  the  privilege  of  the  Power  whose  flag  she  displaj^s  and  in 
whose  service  she  is  employed.  And  the  responsibilities  of  the 
officer  who  in  foreign  waters  acts  in  obedience  to  instructions, 
to  the  detriment  (should  this  be  so)  of  the  foreign  country  or 
any  of  its  people  are  assumed,  and  would  be  wholly  borne,  by 
the  Government  which  instructed  him. ' ' 


224  INTERNATIONAL   POLICE 

go  with  him  to  Givens.  On  the  way,  Anderson  tried 
to  make  his  escape,  and  Diggs  then  called  to  four  ne- 
groes who  were  with  him  to  give  chase,  saying  they 
should  have  the  reward.  Anderson,  being  overtaken, 
drew  a  knife,  threatening  to  kill  any  one  who  touched 
him.  The  negroes  kept  off,  but  Diggs  struck  at  him 
with  a  stick,  which  caught  in  a  bush  and  broke,  and  then 
Anderson  stabbed  him  in  the  breast.  Diggs,  turning  to 
flee,  caught  his  foot  in  a  tree  and  fell,  and  Anderson 
then  stabbed  him  in  the  back,  and  after  being  chased  a 
short  distance  by  the  negroes,  succeeded  in  making  his 
escape  to  Canada.  Diggs  shortly  after  died  of  his 
wounds.  Anderson  lived  unmolested  in  Canada  until 
1860,  when  he  was  recognized,  and  was  arrested  on  the 
application  of  the  officers  of  the  State  of  Missouri." 
(Sir  Edward  Clarke:  The  Law  of  Extradition,  3  ed., 
London,  1888,  p.  95  to  96.) 

When  the  case  came  to  trial  on  a  habeas  corpus  the 
chief  justice  held  that  the  fact  that,  if  acquitted,  Ander- 
son would  be  returned  to  slavery,  was  not  material 
(Ibid,  p.  97).  The  prisoner  was  later  released  by  the 
courts  chiefly  on  technical  grounds.  (See  J.  B.  Moore: 
Extradition,  Vol.  1,  p.  642.) 

In  the  meantime,  however,  "the  case  had  created 
much  excitement  in  England,  and  the  Secretary  for  the 
Colonies  addressed  a  dispatch  to  the  Governor  of  Can- 
ada, instructing  him  not  to  issue  his  warrant  for  the 
extradition  of  Anderson,  even  if  the  judgment  of  the 
Queen's  Bench  were  upheld  on  appeal.  Her  Majesty's 
Government,  he  said,  were  not  satisfied  that  the  decis- 
ion of  the  Court  at  Toronto  was  in  conformity  with  the 
views  of  the  treaty  which  had  hitherto  guided  the  au- 
thorities in  this  country;  and  they  desired  an  oppor- 
tunity of  further  considering  the  question,  and,  if  pos- 
sible, of  conferring  with  the  Government  of  the  United 
States  upon  the  subject."  (Clarke,  Ibid,  p.  98.) 


HUMANITARIAN   ASYLUM  225 

Clarke  in  a  footnote  (Ibid,  p.  217)  remarks:  " 

The  crime  charged  against  him  [Anderson]  upon  the 
facts  stated  was  murder  by  the  law  of  England  as  well 
as  by  that  of  the  United  States.  The  question  whether 
the  circumstances  showed  sufficient  provocation  to  re- 
duce it  to  manslaughter,  was  one  for  the  jury,  and  one 
with  which  the  Canadian  courts  had  nothing  to  do. 
Nor  had  these  courts  any  right  to  inquire  into  the  jus- 
tice or  policy  of  the  legislative  enactment  under  which 
the  arrest  was  attempted  to  be  made.  That  was  a  mat- 
ter for  the  consideration  of  the  foreign  country,  and 
could  not,  however  it  was  resolved,  affect  the  nature  of 
the  crime.  An  illustration  may  be  given  in  the  English 
Act,  14  &  15  Viet.,  cap.  19,  by  which  if  three  poachers 
are  out  together  at  night  armed,  any  person  is  author- 
ized to  apprehend  them.  It  is  very  probable  that 
American  judges  would  disapprove  of  that  Act,  as  part 
of  what  they  might  consider  an  iniquitous  system  of 
game  laws ;  but,  so  long  as  it  remains  upon  the  English 
Statute-book,  a  poacher  killing  a  person  so  attempting 
to  apprehend  him  would  unquestionably  be  guilty  of 
murder,  and  England  would  have  an  indisputable  right 
to  claim  him  under  the  treaty.  So  far  as  this  question 
was  decided  in  the  case  of  Anderson,  it  was  decided 
rightly.  This  was  in  the  decision  of  the  Queen's  Bench 
(Canada)  in  favor  of  the  surrender,  ante,  p.  95.  See 
also  Reg.  v.  Sattler,  1  Dears  and  Bell,  C.  C.,  525." 

This  principle,  to  which  Sir  Edward  Clarke  refers, 
applies  only  in  a  case  like  that  of  the  poachers  in  which 
the  legislation  in  question  may  be  considered  as  a  rea- 
sonable exercise  of  the  Sovereign  powers  of  the  state. 
In  the  case  of  slavery,  however,  this  is  not  the  case, 
for  slavery  being  contrary  to  international  law,  not 
only  is  no  state  obligated  to  help  another  state  to  en- 
force it,  but  it  is  in  duty  bound  to  intervene  within  rea- 
son by  affording  a  refuge  to  the  escaped  slave. 

15 


226  INTERNATIONAL   POLICE 

Justice  M'Lean  of  the  Canadian  Court  of  Queen's 
Bench  was  correct  in  the  view  he  expressed  in  his  dis- 
senting opinion  that  "as  the  law  of  Canada  did  not 
recognize  slavery,  Anderson  could  not  be  held  to  have 
committed  murder  in  resisting  unlawful  detention." 
(Clarke:  Extradition,  3  ed.,  p.  98. )5 

The  relations  between  the  United  States  and  Great 


5Professor  Moore  discussing  the  question  of  the  condition 
of  the  fugitive  as  a  ground  for  refusing  extradition,  says : 
"This  question  frequently  arose  under  the  treaty  of  1842, 
during  the  existence  of  slavery  in  the  United  States.  Prior  to 
the  conclusion  of  that  treaty,  when  at  various  periods  the  sur- 
render of  fugitive  criminals  was  granted  as  an  act  of  comity 
by  Canada  and  by  some  of  the  States  of  the  United  States, 
the  Canadian  Government  refused  to  recognize  offences  which 
grew  out  of  the  relation  of  master  and  slave.  Thus,  on  July 
21,  1829,  Mr.  Van  Buren,  then  Secretary  of  State,  wrote  to 
Mr.  Vaughan,  British  minister,  stating  that  the  governor  of 
Illinois  had  transmitted  evidence  that  one  Paul  Vallard  had 
stolen  a  female  mulatto  slave  and  fled  to  Canada.  Mr.  Van 
Buren,  while  saying  that  he  was  aware  that  there  was  no 
ground  in  public  law  for  a  formal  application,  requested  Mr. 
Vaughan  to  employ  his  good  offices.  Subsequently  Mr.  Vaughan 
replied,  enclosing  an  extract  from  a  report  of  the  executive 
council  of  Lower  Canada,  which  was  as  follows :  '  In  former 
cases  the  committee  have  acted  upon  the  principle,  which  now 
seems  to  be  generally  understood,  that,  whenever  a  crime  has 
been  committed,  and  the  perpetrator  is  punishable  according 
to  the  lex  loci  [law  of  the  locality]  of  the  country  in  which 
it  was  committed,  the  country  in  which  he  is  found  may  right- 
fully aid  the  police  of  the  country  against  which  the  crime  was 
committed  in  bringing  the  criminal  to  justice ;  and,  upon  this 
ground,  have  recommended  that  fugitives  from  the  United 
States  should  be  delivered  up.'  But  (the  report  concluded) 
the  offence  must  be  one  of  those  mala  in  se,  universally  admit- 
ted to  be  crimes  in  every  nation.  Canada  did  not  recognize 
slavery.  She  did  not  admit  that  property  could  be  had  in  a 
human  being,  and  consequently  could  not  give  Vallard  up, 
even  if  he  were  in  Canada,  which  did  not  appear."  (J.  B. 
Moore :  Extradition,  Vol.  1,  §  440,  p.  671-2.  Professor  Moore 
refers  to  MSS.  Notes,  British  Legation,  Vol.  15.  The  case  of 
John  Anderson  is  discussed,  Ibid,  p.  672-4,  and  referred  to, 
Ibid,  pp.  637,  642,  647,  677.) 


HUMANITARIAN   ASYLUM  227 

Britain  were  troubled  from  time  to  time  by  the  refusal 
of  the  latter  to  extradite  or  to  punish  slaves  who  had 
mutinied  against  the  officers  of  American  vessels  trans- 
porting them,  and  taken  refuge  in  the  Bahamas  or  other 
British  ports. 

We  take  verbatim  the  following  concise  statement  of 
the  case  of  the  Creole  from  the  account  given  in  Stow- 
ell  and  Munro's  Cases6: 

In  the  course  of  the  thirties  in  a  number  of  instances 
(The  Comet,  Encomium,,  Enterprise,  and  Hermosa), 
when  American  vessels  transporting  slaves  from  one 
American  port  to  another  were  driven  by  stress  of 
weather  or  other  accident  to  take  refuge  in  British 
ports,  the  local  authorities  had  liberated  their  human 
cargo  in  spite  of  the  vigorous  protests  of  the  American 
Consuls.  Because  of  this  action  the  United  States  made 
vigorous  protests  to  the  British  Government  without 
receiving  the  redress  it  claimed. 

In  1840  the  Senate  adopted  a  resolution  declaring 
that,  where  a  vessel  on  the  high  seas,  in  time  of  peace, 
engaged  in  a  lawful  voyage,  was  forced  by  stress  of 
weather  or  other  unavoidable  circumstances  into  the 
port  of  a  friendly  power,  the  country  to  which  she  be- 
longed lost  "none  of  the  rights  appertaining  to  her  on 
the  high  seas,  either  over  the  vessel  or  the  personal 
relations  of  those  on  board. ' ' 

The  excitement  created  by  these  incidents  culminated 
in  the  case  of  the  brig  Creole,  which  sailed  from  Hamp- 
ton Roads  for  New  Orleans  on  the  27th  of  October, 
1841,  having  on  board  one  hundred  and  thirty-five 
slaves.  On  the  night  of  the  7th  of  November  a  portion 
of  the  slaves  revolted,  wounded  the  master,  chief  mate, 

'Copied  verbatim  from  Stowell  and  Munro:  International 
Cases,  vol.  I,  p.  249-253.  The  account  there  Driven  is  based 
upon  the  documents  given  by  Professor  J.  B.  Moore  (Digest 
of  International  Law,  vol.  II,  p.  350-361).  We  have  omitted 
quotation  marks  in  order  to  avoid  confusion. 


228  INTERNATIONAL   POLICE 

and  two  of  the  crew,  and  murdered  one  of  the  passen- 
gers, and  having  secured  possession  of  the  vessel, 
ordered  the  mate,  under  pain  of  death,  to  steer  for 
Nassau,  where  the  brig  arrived  on  the  9th  of  Novem- 
ber. The  slaves  were  afterwards  liberated,  under  cir- 
cumstances disclosed  below  in  the  opinion  of  Mr.  Bates, 
umpire  of  the  mixed  commission  under  the  treaty  be- 
tween the  United  States  and  Great  Britain  of  1853,  to 
which  commission  the  cases  of  the  Enterprise,  Her- 
mosa,  and  Creole  were  ultimately  submitted,  on  claims 
for  damages. 

In  the  cases  of  the  Comet  and  Encomium,  which  re- 
spectively occurred  in  1831  and  February,  1833,  Great 
Britain  in  the  latter  part  of  President  Van  Buren's 
Administration  paid  an  indemnity  of  $116,179.62.  But 
in  the  cases  of  the  Enterprise,  Hermosa,  and  Creole, 
which  occurred  after  August  1,  1834,  when  the  act  of 
Parliament  of  August  28,  1833,  for  the  abolition  of 
slavery  in  the  British  colonies  took  effect,  the  British 
Government  refused  to  acknowledge  any  liability  on 
the  ground  that  the  slaves  on  entering  British  juris- 
diction became  free.  The  United  States,  on  the  other 
hand,  maintained  that  if  a  vessel  were  driven  by  neces- 
sity to  enter  the  port  of  another  nation  the  local  law 
could  not  operate  so  as  to  effect  existing  rights  of 
property  as  between  persons  on  board,  or  their  per- 
sonal obligations  or  relations  under  the  law  of  the  coun- 
try to  which  the  vessel  belonged.  In  the  case  of  the 
Creole  this  argument  was  emphasized  by  the  fact  that 
the  vessel  was  brought  into  British  jurisdiction  by 
means  of  a  crime  against  the  law  of  the  flag.  The  case 
gave  rise  to  animated  discussions  in  the  British  Parlia- 
ment as  well  as  in  the  Congress  of  the  United  States, 
and  came  near  breaking  up  the  negotiations  between 
Mr.  Webster  and  Lord  Ashburton  in  1842. 


HUMANITAEIAN  ASYLUM  229 

Bates,  umpire  in  the  case  of  the  Creole  under  the  con- 
vention between  the  United  States  and  Great  Britain 
of  February  8, 1853,  rendered  the  following  opinion  :7 

* '  This  case  having  been  submitted  to  the  umpire  for 
his  decision,  he  hereby  reports  that  the  claim  has  grown 
out  of  the  following  circumstances : 

"The  American  brig  Creole,  Captain  Ensor,  sailed 
from  Hampton  Roads,  in  the  State  of  Virginia,  on  the 
27th  October,  1841,  having  on  board  one  hundred  and 
thirty-five  slaves,  bound  for  New  Orleans.  On  the  7th 


Notwithstanding  the  deservedly  high  authority  of  Umpire 
Bates,  we  must  question  the  correctness  of  the  decision  which 
he  reached  in  this  case.  The  defect  in  his  reasoning  was  due 
to  his  failure  to  recognize  that  slavery  was  contrary  to  the 
law  of  nations.  Holding  a  different  opinion,  as  we  have  just 
seen,  Umpire  Bates  declared  that  "  . . .  slavery,  however  odious 
and  contrary  to  the  principles  of  justice  and  humanity,  may 
be  established  by  law  in  any  country;  and,  having  been  so 
established  in  many  countries,  it  cannot  be  contrary  to  the 
law  of  nations. ' ' 

Clarke,  discussing  this  case,  remarks :  ' '  The  law  authorities 
in  England  were  unanimously  of  opinion  upon  this  case  that 
they  [the  slaves]  could  not  be  given  up  in  the  absence  of  an 
Act  of  the  English  Parliament  giving  power  to  the  executive. 

"For  this  reason  the  extradition  clause  of  the  Ashburton 
treaty,  which  has  already  been  quoted,  while  it  took  immediate 
effect  in  America  and  Canada,  did  not  come  into  operation  in 
England  until  August,  1843,  when  the  Act  6  and  7  Viet.,  c.  76, 
was  passed.  Some  objection  was  made  to  this  Act  in  the 
House  of  Commons,  where  fears  were  expressed  that  advan- 
tage might  be  taken  of  the  treaty  to  get  back  fugitive  slaves  on 
pretended  charges  of  robbery.  The  Attorney-General  (Sir 
F.  Pollock),  being  appealed  to  on  the  subject,  said  that,  upon 
a  charge  of  crime  being  made  against  a  fugitive,  his  personal 
status  in  the  country  from  which  he  had  fled  would  be  wholly 
immaterial."  (Sir  Edward  Clarke:  The  Law  of  Extradition, 
3  ed.,  1888,  p.  125.) 

This  refusal  of  the  amendment  to  exclude  slaves  from  the 
operation  of  the  act  might  perhaps  be  considered  as  a  legis- 
lative interpretation  of  the  law  of  nations,  in  which  event, 
it  might  have  been  expected  to  have  some  influence  in  fixing 
the  responsibility  of  the  British  Government  in  the  case  of  the 
Creole. 


230  INTERNATIONAL   POLICE 

November,  at  nine  o'clock  in  the  evening,  a  portion  of 
the  slaves  rose  against  the  officers,  crew,  and  passen- 
gers, wounding  severely  the  captain,  the  chief  mate, 
and  two  of  the  crew,  and  murdering  one  of  the  passen- 
gers; the  mutineers,  having  got  complete  possession 
of  the  vessel,  ordered  the  mate,  under  threat  of  instant 
death  should  he  disobey  or  deceive  them,  to  steer  for 
Nassau,  in  the  island  of  New  Providence,  where  the 
brig  arrived  on  the  9th  November,  1841. 

*  *  The  American  Consul  was  apprised  of  the  situation 
of  the  vessel,  and  requested  the  governor  to  take  meas- 
ures to  prevent  the  escape  of  the  slaves,  and  to  have  the 
murderers  secured.  The  consul  received  reply  from 
the  Governor,  stating  that  under  the  circumstances  he 
would  comply  with  the  request. 

"The  consul  went  on  board  the  brig,  placed  the  mate 
in  command  in  place  of  the  disabled  master,  and  found 
the  slaves  all  quiet. 

"About  noon  twenty  African  soldiers,  with  an  Afri- 
can sergeant  and  corporal,  commanded  by  a  white  of- 
ficer, came  on  board.  The  officer  was  introduced  by 
the  consul  to  the  mate  as  commanding  officer  of  the 
vessel. 

"The  consul,  on  returning  to  the  shore,  was  sum- 
moned to  attend  the  governor  and  council,  who  were 
in  session,  who  informed  the  consul  that  they  had  come 
to  the  following  decision: 

"  '1st.  That  the  courts  of  law  have  no  jurisdic- 
tion over  the  alleged  offenses. 

"  *2d.  That,  as  an  information  had  been  lodged 
before  the  governor,  charging  that  the  crime  of 
murder  had  been  committed  on  board  said  vessel 
while  on  the  high  seas,  it  was  expedient  that  the 
parties,  implicated  in  so  grave  a  charge,  should 
not  be  allowed  to  go  at  large,  and  that  an  investi- 


HUMANITARIAN  ASYLUM  231 

gallon  ought  therefore  to  be  made  into  the  charges, 
and  examinations  taken  on  oath ;  when,  if  it  should 
appear  that  the  original  information  was  correct, 
and  that  a  murder  had  actually  been  committed, 
that  all  parties  implicated  in  such  crime,  or  other 
acts  of  violence,  should  be  detained  here  until 
reference  could  be  made  to  the  Secretary  of  State 
to  ascertain  whether  the  parties  should  be  deliv- 
ered over  to  the  United  States  Government ;  if  not, 
how  otherwise  to  dispose  of  them. 

* '  '  3d.  That  as  soon  as  such  examinations  should 
be  taken,  all  persons  on  board  the  Creole,  not  im- 
plicated in  any  of  the  offenses  alleged  to  have  been 
committed  on  board  the  vessel,  must  be  released 
from  further  restraint.' 

"Then  two  magistrates  were  sent  on  board.  The 
American  Consul  went  also.  The  examination  was 
commenced  on  Tuesday,  the  9th,  and  was  continued  on 
Wednesday,  the  10th,  and  then  postponed  until  Friday, 
on  account  of  the  illness  of  Captain  Ensor.  On  Friday 
morning  it  was  abruptly,  and  without  any  explanation, 
terminated. 

"On  the  same  day,  a  large  number  of  boats  assem- 
bled near  the  Creole,  filled  with  colored  persons  armed 
with  bludgeons.  They  were  under  the  immediate  com- 
mand of  the  pilot,  who  took  the  vessel  into  the  port, 
who  was  an  officer  of  the  government,  and  a  colored 
man.  A  sloop  or  larger  launch  was  also  towed  from  the 
shore  and  anchored  near  the  brig.  The  sloop  was  filled 
with  men  armed  with  clubs,  and  clubs  were  passed  from 
her  to  the  persons  in  the  boats.  A  vast  concourse  of 
people  were  collected  on  shore  opposite  the  brig. 

"During  the  whole  time  the  officers  of  the  govern- 
ment were  on  board  they  encouraged  the  insubordina- 
tion of  the  slaves. 


232  INTERNATIONAL   POLICE 

"The  Americans  in  port  determined  to  unite  and 
furnish  the  necessary  aid  to  forward  the  vessel  and 
negroes  to  New  Orleans.  The  Consul  and  the  officers 
and  crews  of  two  other  American  vessels  had,  in  fact, 
united  with  the  officers,  men,  and  passengers  of  the 
Creole  to  effect  this.  They  were  to  conduct  her  first  to 
Indian  Quay,  Florida,  where  there  was  a  vessel  of  war 
of  the  United  States. 

"On  Friday  morning,  the  consul  was  informed  that 
attempts  would  be  made  to  liberate  the  slaves  by  force, 
and  from  the  mate  he  received  information  of  the 
threatening  state  of  things.  The  result  was,  that  the 
attorney-general  and  other  officers  went  on  board  the 
Creole.  The  slaves,  identified  as  on  board  the  vessel 
concerned  in  the  mutiny,  were  sent  on  shore,  and  the 
residue  of  the  slaves  were  called  on  deck  by  direction 
of  the  attorney-general,  who  addressed  them  in  the 
following  terms :  '  My  friends, '  or  '  my  men,  you  have 
been  detained  a  short  time  on  board  the  Creole  for  the 
purpose  of  ascertaining  what  individuals  were  con- 
cerned in  the  murder.  They  have  been  identified  and 
will  be  detained.  The  rest  of  you  are  free,  and  at  lib- 
erty to  go  on  shore,  and  wherever  you  please. ' 

"The  liberated  slaves,  assisted  by  the  magistrates, 
were  then  taken  on  board  the  boats,  and  when  landed 
were  conducted  by  a  vast  assemblage  to  the  superin- 
tendent of  police,  by  whom  their  names  were  registered. 
They  were  thus  forcibly  taken  from  the  custody  of  the 
master  of  the  Creole,  and  lost  to  the  claimants. 

"I  need  not  refer  to  authorities  to  show  that  slavery, 
however  odious  and  contrary  to  the  principles  of  jus- 
tice and  humanity,  may  be  established  by  law  in  any 
country ;  and,  having  been  so  established  in  many  coun- 
tries, it  cannot  be  contrary  to  the  law  of  nations. 


HUMANITARIAN  ASYLUM  233 

1  'The  Creole  was  on  a  voyage,  sanctioned  and  pro- 
tected by  the  laws  of  the  United  States,  and  by  the  law 
of  nations.  Her  right  to  navigate  the  ocean  could  not 
be  questioned,  and  as  growing  out  of  that  right,  the 
right  to  seek  shelter  or  enter  the  ports  of  a  friendly 
power  in  case  of  distress  or  any  unavoidable  neces- 
sity. 

"A  vessel  navigating  the  ocean  carries  with  her  the 
laws  of  her  own  country,  so  far  as  relates  to  the  per- 
sons and  property  on  board,  and  to  a  certain  extent, 
retains  those  rights  even  in  the  ports  of  the  foreign 
nations  she  may  visit.  Now,  this  being  the  state  of  the 
law  of  nations,  what  were  the  duties  of  the  authorities 
at  Nassau  in  regard  to  the  Creole?  It  is  submitted  the 
mutineers  could  not  be  tried  by  the  courts  of  that 
island,  the  crime  having  been  committed  on  the  high 
seas.  All  that  the  authorities  could  lawfully  do,  was 
to  comply  with  the  request  of  the  American  Consul, 
and  keep  the  mutineers  in  custody  until  a  conveyance 
could  be  found  for  sending  them  to  the  United  States. 

"The  other  slaves,  being  perfectly  quiet,  and  under 
the  command  of  the  captain  and  owners,  and  on  board 
an  American  ship,  the  authorities  should  have  seen 
that  they  were  protected  by  the  law  of  nations ;  their 
rights  under  which  cannot  be  abrogated  or  varied, 
either  by  the  emancipation  act  or  any  other  act  of  the 
British  Parliament. 

"Blackstone,  4th  volume,  speaking  of  the  law  of 
nations,  states:  'Whenever  any  question  arises,  which 
is  properly  the  object  of  its  jurisdiction,  such  law  is 
here  adopted  in  its  full  extent  by  the  common  law. ' 

"The  municipal  law  of  England  cannot  authorize  a 
magistrate  to  violate  the  law  of  nations  by  invading 
with  an  armed  force  the  vessel  of  a  friendly  nation  that 
has  committed  no  offense,  and  forcibly  dissolving  the 


234  INTERNATIONAL   POLICE! 

relations  which  by  the  laws  of  his  country  the  captain 
is  bound  to  preserve  and  enforce  on  board. 

'  *  These  rights,  sanctioned  by  the  law  of  nations,  viz : 
the  right  to  navigate  the  ocean,  and  to  seek  shelter  in 
case  of  distress  or  other  unavoidable  circumstances, 
and  to  retain  over  the  ship,  her  cargo,  and  passengers, 
the  laws  of  her  own  country — must  be  respected  by  all 
nations;  for  no  independent  nation  would  submit  to 
their  violation. 

"  Having  read  all  the  authorities  referred  to  in  the 
arguments  on  both  sides,  I  have  come  to  the  conclusion 
that  the  conduct  of  the  authorities  at  Nassau  was  in 
violation  of  the  established  law  of  nations,  and  that  the 
claimants  are  justly  entitled  to  compensation  for  their 
losses.  I  therefore  award  to  the  undermentioned  par- 
ties, their  assigns,  or  legal  representatives,  the  sum  set 
opposite  their  names,  due  on  the  15th  of  January, 
1855."  The  total  amount  awarded  was  $110,330.  (Ex- 
tracted and  condensed  from  Moore:  Digest  of  Inter- 
national Law,  vol.  II,  pp.  350-61.) 

Sir  Frederick  St.  John,  who  was  at  the  time  attached 
to  the  British  Embassy  at  Constantinople,  gives  the 
following  account  of  how  the  British  Ambassador  gave 
an  asylum  in  the  Embassy  to  a  slave  girl  to  save  her 
from  the  harsh  provisions  of  Turkish  law : 

"A  curious  incident  occurred  in  the  summer  of  1880 
while  the  Embassy  was  at  Therapia.  One  of  the  drago- 
mans came  up  the  Bosphorus  from  town  specially  to 
report  than  an  odalisk  (a  slave  lady)  from  the  harem 
of  the  deposed  Sultan  Murad  had  escaped  from  the 
house  of  a  pasha,  in  whose  custody  she  had  been  placed, 
taken  refuge  in  the  British  Embassy  palace,  and  threat- 
ened to  stab  herself  should  an  attempt  be  made  to 
expel  her. 

' '  Mr.  Goschen  directed  that  I  should  at  once  accom- 
pany our  dragoman  back  to  town  and  interview  the 


HUMANITARIAN  ASYLUM  235 

lady.  I  found  a  very  beautiful,  delicate-looking  young 
Circassian,  dressed  in  European  clothes,  which  she  had 
borrowed  from  the  wife  of  our  Embassy  porter  in  ex- 
change for  the  garb  of  the  poorest  of  beggar-women, 
in  which  she  had  arrived.  I  put  her,  by  means  of  the 
dragoman,  through  an  interrogatory,  and  this  was  her 
story.  On  the  deposition  of  the  present  Sultan's  broth- 
er she  was,  as  above  stated,  placed  with  the  family  of  a 
pasha  holding  office  at  court;  but  finding  life  intoler- 
able in  such  custody  (no  particulars  were  given  me) 
she  determined  to  escape  and  take  refuge  at  the  Brit- 
ish Embassy.  So,  after  exchanging  dresses  with  an 
old  woman  engaged  to  wash  down  the  stone  stairs  at 
early  dawn,  she  sallied  forth,  for  the  first  time  in  her 
life  alone,  into  the  streets,  and,  not  knowing  the  way, 
wandered  about  for  hours,  till  so  exhausted  that  she 
entered  a  coffee-shop  and,  holding  out  a  coin,  asked 
that  a  carriage  might  be  fetched,  as  she  felt  too  ill  to 
walk,  and  thus  reached  the  Embassy. 

1 '  Having  concluded  her  story,  she  repeated  to  me  the 
threat  that  any  attempt  to  expel  her  should  be  followed 
instantly  by  self-immolation;  and  by  way  of  empha- 
sizing her  determination  she  half  unsheathed  a  gleam- 
ing weapon  wherewith  to  carry  out  the  ghastly  threat. 

' '  I  had  heard  enough,  so  I  withdrew  from  her  pres- 
ence and  hurried  back  to  Therapia,  where  the  Ambas- 
sador and  his  family  had  just  commenced  dinner.  I 
was  invited  to  join  in  the  meal,  and  while  so  engaged  I 
recounted  my  interview  to  eager  listeners. 

'  *  It  was  decided  that  I  should  next  morning  return  to 
Pera  in  the  ambassadorial  coach,  with  an  assortment 
of  ladies'  garments,  including  a  hat  and  thick  veil, 
wherewith  the  better  to  disguise  this  interesting  refu- 
gee as  I  conducted  her  to  the  landing-place  at  Galata, 
where  a  British  man-of-war's  steam-launch  would  be 


236  INTERNATIONAL   POLICE 

in  readiness  to  convey  her  up  the  Bosphorus  to  Ther- 
apia. 

'  *  On  quitting  the  Ambassador 's  residence,  and  on  re- 
joining after  dinner  my  colleagues  in  the  secretaries' 
house  at  the  other  end  of  the  Embassy  gardens,  I  went 
over  the  same  ground  with  reference  to  my  interview 
with  the  beautiful  odalisk,  whose  charms  I  exaggerated 
not  more  than  five  per  cent,  over  the  truth  (being  only 
on  one  side  Irish) ;  but  it  was  enough  to  make  each  one 
of  them  regret  that  he  had  not  been  the  one  selected 
(by  a  discriminating  chief)  to  carry  out  so  delicate  a 
mission. 

1  *  On  my  arrival  in  town  the  next  morning,  an  eleven 
miles'  drive,  I  intimated  to  the  lady,  through  the  por- 
ter's wife,  what  had  been  the  Ambassador's  decision — 
which  was  that  she  should  reside  in  the  Embassy  house 
at  Therapia  till  otherwise  determined.  On  her  accept- 
ance of  my  proposal  I  directed  the  porter  to  extract  a 
certain  bundle  out  of  the  carriage,  and  then  withdrew. 

"  After  the  lapse  of  twenty  minutes  or  so  I  was  in- 
vited by  the  porter 's  wife  to  reenter  the  room,  where  I 
found  a  perfectly  unrecognizable  and  fashionably 
dressed  European  lady,  with  whom  I  reentered  the  car- 
riage and  drove  down  to  Galata ;  but  it  was  a  market 
day,  and  the  narrow  alley  leading  from  the  main  street 
to  the  landing-place  was  so  crowded  with  vendors  and 
their  wares  that  we  were  forced  to  alight  and  walk  the 
rest  of  the  distance. 

"This  was  the  critical  moment.  I  made  her  take 
my  arm,  and,  as  we  threaded  our  way  though  a  Mo- 
hametan  crowd,  I  became  painfully  conscious  that  were 
I  followed  by  a  spy,  and  denounced  as  eloping  with  a 
lady  from  the  palace,  my  shrift  would  be  but  short. 
Vendors  and  purchasers  were,  however,  far  too  inter- 
ested in  their  deals  to  heed  a  passing  giaour  couple,  and 
so  we  safely  reached  the  spot  where  the  steam-launch, 


HUMANITARIAN  ASYLUM  237 

with  more  than  the  usual  number  of  bluejackets — 
armed  to  the  teeth — was  in  waiting. 

"After  assisting  the  veiled  one  to  embark,  and  see- 
ing the  steam-launch  well  off,  I  returned  to  the  carriage 
and  drove  to  the  Porte  at  Stamboul — where,  as  previ- 
ously instructed,  I  informed  Artin  Bey,  the  secretary- 
general  of  the  Foreign  Department,  of  all  that  had  oc- 
curred. He  is  a  most  intelligent  Armenian,  with  a 
wonderful  volubility  of  speech,  but  what  I  had  to  im- 
part to  him  simply  paralyzed  his  tongue.  I  can  see 
him  now,  gaping  at  me  in  silence  as  I  left  the  room. 

"In  the  afternoon  of  the  following  day  he  arrived 
at  Therapia,  charged  by  the  reigning  Sultan,  Abdul 
Hamid,  to  see  Mr.  Goschen  and  demand  the  release  of 
the  absconded  one.  I  was  present  at  the  interview. 
He  assured  the  Ambassador,  from  the  Sultan,  that  if 
the  lady  were  returned  she  should  be  forgiven  for  her 
escapade  and  every  care  taken  of  her.  Mr.  Goschen 
replied  that  only  with  her  free  consent  should  the  Sul- 
tan 's  wish  be  complied  with. 

"Artin  Bey  thereupon  besought  Mr.  Goschen  that  he 
might  be  allowed  to  speak  with  the  lady.  After  some 
hesitation  the  request  was  granted,  on  condition  that  I 
was  present  at  the  interview — which  lasted  two  hours, 
during  the  whole  of  which  time  Artin  Bey  appeared  to 
use  all  the  eloquence  at  his  command  to  induce  the  lady 
to  obey  the  Sultan's  behest,  but  in  vain.  To  every 
fresh  appeal,  while  reclining  on  a  cushion  with  her  face 
to  the  wall — for  she  was  unprovided  with  a  yashmak — 
the  lady  replied  with  a  shake  of  the  head,  as  the  tears 
streamed  down  her  cheeks.  At  last  he  rose  and  depart- 
ed, evidently  much  disconcerted,  'but  returned  the 
next  day  with  further  offers  from  the  Sultan.  She  was 
to  choose  her  own  residence,  her  own  attendants,  and 
receive  an  ample  allowance.  To  these  conditions,  after 
a  three  hours'  interview,  during  the  whole  of  which 


238  INTERNATIONAL   POLICE 

time  I  was  present,  she  at  last  agreed;  and,  on  her  con- 
sent being  communicated  to  Mr.  Goschen,  he  made  the 
condition  that  before  the  lady  departed  he  should  be 
furnished  with  a  document,  signed  by  the  Ottoman 
Minister  of  Foreign  Affairs,  to  the  effect  that  the  Sul- 
tan promised  never  to  give  cause  to  the  Ambassador  to 
regret  having  surrendered  the  lady,  whose  residence 
should  be  made  known  to  the  Embassy,  in  order  that  in- 
quiries might  from  time  to  time  be  instituted,  and  the 
fact  ascertained  that  she  was  contented  and  happy. 

'  *  On  the  following  day  Artin  Bey  returned,  this  time 
in  a  special  steamer;  and,  after  submitting  the  docu- 
ment in  the  form  required,  departed  with  the  lady. 
From  all  we  heard  afterwards  she  appears  never  to 
have  had  cause  to  regret  having  accepted  the  Sultan's 
offers."  (Sir  Frederick  St.  John:  Reminiscences  of  a 
Retired  Diplomat,  p.  194-8.) 

In  view  of  the  growing  abhorrence  of  slavery  and  the 
numerous  precedents  denying  its  legality,  it  is  easy  to 
understand  the  disappointment  of  the  United  States 
at  its  failure  to  secure  the  sympathy  of  the  European 
powers  in  the  war  to  prevent  secession  and  the  estab- 
lishment of  a  slave-holding  state  determined  to  per- 
petuate that  institution. 

The  Senate  of  the  United  States,  in  its  report  of 
February  28, 1863,  relative  to  the  offer  of  Napoleon  III 
of  "mediation,"  expressed  "regret  that  foreign 
powers  have  not  frankly  told  the  chiefs  of  the  Rebel- 
lion that  the  work  in  which  they  are  engaged  is  hate- 
ful, and  that  a  new  government  such  as  they  seek  to 
found,  with  slavery  as  its  corner  stone,  and  with  no 
other  declared  object  of  separate  existence,  is  so  far 
shocking  to  civilization  and  the  moral  sense  of  man- 
kind that  it  must  not  expect  welcome  or  recognition  in 
the  commonwealth  of  nations. ' '  The  President  was  re- 
quested to  transmit  this  declaration  and  protest  to  the 


HUMANITARIAN  ASYLUM  239 

American  representatives  abroad  for  communication 
to  the  governments  to  which  they  were  accredited.8 

8In  a  letter  to  John  Lothrop  Motley,  dated  January  26, 
1863,  John  Stuart  Mill  writes:  "But  a  decided  movement  in 
your  favor  has  begun  among  the  public  since  it  has  been  evi- 
dent that  your  Government  is  really  in  earnest  about  getting 
rid  of  slavery.  I  have  always  said  that  it  was  ignorance,  not 
ill-will  which  made  the  majority  of  the  English  public  go 
wrong  about  this  great  matter.  Difficult  as  it  may  well  be  for 
you  to  comprehend  it,  the  English  public  were  so  ignorant  of 
all  the  antecedents  of  the  quarrel  that  they  really  believed  what 
they  were  told,  that  slavery  was  not  the  ground,  scarcely  even 
the  pretext,  of  the  war.  But  now,  when  the  public  acts  of 
your  government  have  shown  that  now  at  least  it  aims  at  entire 
slave  emancipation,  that  your  victory  means  that,  and  your 
failure  means  the  extinction  of  all  present  hope  of  it,  many 
feel  very  differently.  When  you  entered  decidedly  into  this 
course,  your  detractors  abused  you  more  violently  for  doing 
it  than  they  had  before  for  not  doing  it,  and  the  Times  and 
Saturday  Review  began  favoring  us  with  the  very  arguments, 
and  almost  in  the  very  language,  which  we  used  to  hear  from 
the  West  Indian  slaveholders  to  prove  slavery  perfectly  con- 
sistent with  the  Bible  and  with  Christianity.  This  was  too 
much :  it  overshot  the  mark.  The  Anti-Slavery  feeling  is  now 
thoroughly  rousing  itself.  Liverpool  has  led  the  way  by  a 
splendid  meeting,  of  which  the  Times  suppressed  all  mention, 
thus  adding,  according  to  its  custom,  to  the  political  dishonesty 
a  pecuniary  fraud  upon  its  subscribers.  But  you  must  have 
seen  a  report  of  this  meeting ;  you  must  have  seen  how  Spence 
did  his  utmost,  and  how  he  was  met ;  and  that  the  object  was 
not  merely  a  high  demonstration,  but  the  appointment  of  a 
committee  to  organize  an  action  on  the  public  mind.  There  are 
none  like  the  Liverpool  people  for  making  an  organization  of 
that  sort  succeed  if  once  they  put  their  hands  to  it.  The  day 
when  I  read  this  I  read  in  the  same  day's  newspaper  two 
speeches  by  Cabinet  Ministers:  one  by  Milner-Gibson,  as 
thoroughly  and  openly  with  you  as  was  consistent  with  the 
position  of  a  Cabinet  Minister;  the  other  by  the  Duke  of 
Argyll,  a  simple  Anti-Slavery  speech,  denouncing  the  pro- 
slavery  declaration  of  the  southern  bishops,  but  his  delivering 
such  a  speech  at  that  time  and  place  has  but  one  meaning.  I 
do  not  know  if  you  have  seen  Cairnes's  Lecture,  or  whether 
you  are  aware  that  it  has  been  taken  up  and  largely  circulated 
by  religious  societies,  and  is  at  its  fourth  edition.  A  new  and 
enlarged  edition  of  his  great  book  is  on  the  point  of  publication, 


240  INTERNATIONAL   POLICE 

An  amusing  incident  showing  some  of  the  incon- 
veniences of  international  intercourse  between  states 
of  unequal  culture  appears  from  the  following  letter 
which  Mr.  Hammond  of  the  Foreign  Office  sent  to  Lord 
Lyons  May  30,  1867: 

"We  should  like  to  know  as  soon  as  possible  at  what 
time  we  may  calculate  on  seeing  the  Sultan  and  what 
members  of  his  family  or  of  his  government  he  brings 
with  him,  and  the  rank  and  description  of  his  suite  and 
their  numbers.  It  is  to  be  hoped  they  will  not  be  too 
numerous,  and  that  as  he  is  to  be  lodged  in  the  Palace, 
the  usual  habits  of  Orientalism  will  for  the  time  be  laid 
aside  and  the  services  of  his  Harem  be  dispensed  with 
during  his  visit.  It  would  shock  the  people  in  this 
country  to  hear  of  the  Sultan  being  attended  by  persons 
not  proper  to  be  mentioned  in  civilized  society,  and  no 
small  inconvenience  might  result  if  he  was  known  to 
have  slaves  in  his  suite,  for  it  would  be  impossible  to 
answer  for  the  enthusiasts  of  Exeter  Hall  with  so  fair 
an  opportunity  before  them  for  displaying  their  zeal 
and  doing  mischief."  (Lord  Newton's  Life  of  Lord 
Lyons,  vol.  I,  p.  172.) 

In  fit  conclusion,  we  wish  to  quote  here  once  again 
Hall's  opinion  that  ". .  .the  personal  freedom  of  hu- 
man beings  has  been  admitted  by  modern  civilized 
states  as  a  right  which  they  are  bound  to  respect  and 

which  they  ought  to  uphold  internationally."     (W.  E. 
Hall:  International  Law,  4  ed.,  §  108,  p.  343.) 

Slavery  has  now  almost  entirely  disappeared  and  is 
not  likely  much  longer  to  constitute  a  problem  in  inter- 
national law,  but  the  principles  upon  which  humanita- 
rian interventions  for  the  prevention  of  involuntary 


and  will,  I  have  no  doubt,  be  very  widely  read  and  powerfully 
influential."  (The  Letters  of  John  Stuart  Mill,  edited  by 
Hugh  S.  R.  Elliot,  vol.  I,  p.  277-9.) 


HUMANITARIAN  ASYLUM  241 

servitude  have  so  frequently  been  based  seem  destined 
to  play  an  important  role  in  the  future,  by  reason  of  the 
close  analogy  between  the  condition  of  slavery  and  that 
economic  thraldom  in  which  human  beings  are  made  to 
toil  beyond  the  limits  of  reasonable  endurance.  It  has 
sometimes  happened  that  laborers,  including  pregnant 
women,  and  children  of  tender  age,  have  been  forced  by 
economic  pressure  to  work  in  sweatshops  and  elsewhere 
under  conditions  which  shock  the  right  sentiment  of 
humanity.  The  same  irresistible  force  of  public  opin- 
ion which  in  the  past  has  demanded  intervention  to  re- 
press the  abhorrent  slave  trade  and  to  discountenance 
slavery  will  probably  drive  on  governments  to  adopt  a 
similar  course  and  to  intervene  for  the  purpose  of  re- 
forming the  conduct  of  states  where  the  conditions  of 
labor  are  so  intolerable  as  to  shock  the  humane  senti- 
ments of  other  states. 

We  shall  see  further  along  an  application  of  this  kind 
of  intervention  in  the  legislation  adopted  by  certain 
states  for  the  purpose  of  compelling  other  states  to 
protect  passengers  voyaging  under  their  flag  and  pre- 
vent an  abusive  or  inhuman  treatment  of  seamen. 

POLITICAL  REFUGEES 

Asylum  has  often  been  granted  in  warships  and  le- 
gations to  political  refugees.  In  certain  states  which 
are  subject  to  frequent  revolutions  and  periods  of  tur- 
moil when  factional  animosities  prevail  over  all  con- 
siderations of  justice  and  patriotism,  it  has  been  cus- 
tomary to  offer  an  asylum  in  legations  and  consulates 
to  political  fugitives. 

It  may  be  argued  that  this  is  justifiable  as  an  inter- 
vention on  the  ground  of  humanity  to  prevent  the  un- 
necessary slaughter  of  men  whose  qualities  of  leader- 
ship are  needed  by  the  country.  On  the  other  side  it  is 

16 


242  INTERNATIONAL   POLICE 

argued  that  this  intervention  tends  to  preserve  the 
refugees  to  fight  another  day,  and  so  to  prolong  the 
miseries  of  the  whole  country  in  order  to  save  a  few 
lives. 

From  Professor  Moore 's  interesting  study  of  Asylum 
in  Legations  and  in  Vessels,  we  take  the  following  ex- 
tract summarizing  certain  instances  of  political  asylum 
granted  in  certain  European  States  in  time  of  disturb- 
ance: "During  the  disorders  at  Naples  in  1849,  Lord 
Palmerston  said  that  while  it  'would  not  be  right  to 
receive  and  harbor  on  board  of  a  British  ship  of  war 
any  person  flying  from  justice  on  a  criminal  charge,  or 
who  was  escaping  from  the  sentence  of  a  court  of  law, ' 
yet  a  British  man-of-war  had  always  been  regarded  as 
a  safe  place  of  refuge  for  persons  fleeing  'from  perse- 
cution on  account  of  their  conduct  or  opinions, '  wheth- 
er the  refugee  'was  escaping  from  the  arbitrary  acts 
of  a  monarchical  government  or  from  the  lawless  vio- 
lence of  a  revolutionary  committee.'  (British  State 
Papers,  vol.  50,  p.  803.)  In  August  of  the  preceding 
year  the  Duke  of  Parma,  whose  life  was  threatened, 
was  embarked  at  Civita  Vecchia  on  the  British  man-of- 
war  Hecate,  (Ibid,  vol.  41,  p.  1316),  and  in  the  same 
month  the  British  admiral  ordered  H.  M.  S.  Bulldog 
to  the  same  port  to  receive  the  Pope,  should  commo- 
tions render  it  desirable  for  His  Holiness  to  seek  refuge 
on  board  (Ibid,  vol.  41,  :  1324).  During  the  revolution 
in  Greece  in  1862,  King  Otho  and  his  queen  were  af- 
forded protection  on  the  British  Frigate  Scylla  (Ibid, 
vol.  58: 1034),  while  a  member  of  the  cabinet  and  his 
family  were  received  on  the  Queen  and  several  persons 
were  sheltered  on  the  French  man-of-war  Zenobie.  The 
instructions  given  by  Vice-Admiral  Sir  William  Mar- 
tin on  that  occasion  to  the  commanders  of  British  ships 
of  war  declared  that  their  duty  was  'limited  to  the  pro- 
tection of  the  lives  and  property  of  British  subjects 


HUMANITARIAN  ASYLUM  243 

and  to  affording  protection  to  any  refugees  whom  you 
may  be  informed  by  Her  Majesty's  minister  would  be 
in  danger  of  their  lives  without  such  protection. '  (Ibid, 
vol.  58,  p.  1057.)  Under  these  instructions,  the  recep- 
tion of  refugees  by  the  British  commanders  was  care- 
fully restricted  (Ibid,  p.  1087)." 

A  rather  exceptional  instance  of  asylum  in  a  battle- 
ship was  that  which  the  British  Government  was  ready 
to  offer  the  Pope  shortly  after  the  outbreak  of  the 
Franco-German  war  to  carry  him  safely  to  England. 
Had  the  Pope  actually  taken  refuge  on  a  British  war- 
ship, it  might  have  been  classed  as  an  instance  of  hu- 
manitarian intervention  to  prevent  any  danger  to  the 
person  and  dignity  of  the  head  of  the  Roman  Catholic 
Church.  (See  Parliamentary  Papers,  1871,  vol.  72  [c. 
247]  p.  4-5.) 

It  is  in  certain  states  of  America  that  this  form  of 
humanitarian  intervention  has  most  frequently  been 
employed.  In  some  instances,  the  states  concerned 
have  made  energetic  protest.  On  the  whole  the  United 
States  has  tended  to  support  the  opinion  which  is 
against  the  granting  of  political  asylum. 

The  French  Government  expressed  a  different  view, 
when  in  the  case  of  four  ex-ministers  of  Peru  who 
sought  refuge  in  the  French  Legation,  Nov.  6,  1865,  M. 
Drouyn  de  Lhuys  instructed  the  French  consul 
temporarily  in  charge  of  the  legation  that  the 
right  of  asylum  was  too  much  in  conformity  with  feel- 
ings of  humanity  for  France  to  consent  to  abandon  it, 
but  that  it  was  solely  requisite  to  facilitate  the  depar- 
ture from  the  country  of  persons  who  could  not  remain 
there  without  personal  danger  and  danger  to  the 
country  itself.  (Extract  quoted  from  Sir  Ernest 
Satow:  Diplomatic  Practice,  London,  1917,  vol.  I, 
291-2;  J.  B.  Moore:  Asylum,  Political  Science  Quar- 


244  INTERNATIONAL   POLICE 

terly,  March,  1892,  vol.  vii,  p.  29-37,  gives  a  more  full 
account.) 

Mr.  Hovey,  who  was  the  American  Minister  to  Peru 
shortly  thereafter,  during  the  revolutionary  distress 
which  still  prevailed,  was  so  impressed  with  the  abuses 
which  asylum  covered  that  he  refused  to  grant  it  until 
his  government  should  expressly  instruct  him  to  do  so. 
Mr.  Hovey 's  views  are  expressed  in  his  dispatch  to  Sec- 
retary Seward,  January  28,  1867 : 

"In  my  dispatch  No.  4,  dated  December  28th,  1865, 
I  addressed  the  Department  of  State  in  relation  to  the 
question  of  diplomatic  asylum,  stating  that  I  should 
refuse  to  exercise  that  power  until  I  was  otherwise 
directed.  I  have  not  as  yet  received  an  answer  to  that 
communication,  and  have  concluded  from  your  silence 
that  the  government  approved  my  course. 

"On  the  12th  day  of  the  present  month  I  received  a 
note  from  his  excellency  Senor  Don  Toribio  Pacheco, 
minister  of  foreign  affairs,  inviting  me  to  a  conference 
for  a  definite  agreement  as  to  the  principles  of  inter- 
national law  in  relation  to  this  important  subject. 
Being  indisposed  at  the  time  I  addressed  a  note  to  his 
excellency,  in  which  I  reiterated  the  substance  of  my 
No.  4,  above  referred  to,  alluding  therein  to  the  au- 
thorities of  Wheaton,  Woolsey,  and  Polsin,  denying 
the  doctrine  of  asylum,  but  saying  to  his  excellency 
that  if  other  foreign  ministers  were  permitted  to  exer- 
cise the  right  in  Peru,  I  should  expect  to  be  entitled 
to  the  same. 

"Being  invited  to  a  diplomatic  conference  of  the  21st 
instant,  I  attended  the  same,  and  offered  the  following 
resolutions : 

* '  1.  The  diplomatic  body  here  assembled  resolve  that 
they,  and  each  of  them,  jointly  and  severally,  acknowl- 
edge and  recognize  Peru  as  a  Christian  nation. 


HUMANITARIAN  ASYLUM  245 

'  *  2.  As  each  Christian  nation  should,  by  internation- 
al law,  be  entitled  to  all  the  rights  properly  claimed  by 
others,  therefore — 

"Resolved,  That  Peru  is  entitled  to  the  same  rights 
and  privileges,  through  her  diplomatic  agents  abroad, 
that  we,  as  representatives  near  the  government  of 
Peru,  are  respectively  entitled  to  here,  and  that  we 
cannot,  in  justice,  claim  more  than  our  respective  gov- 
ernments accord  to  the  representatives  of  Peru. 

' '  3.  Therefore  resolved,  That  we  recognize  the  law  of 
nations,  as  relating  to  the  question  of  asylum,  to  be  the 
same  as  practiced  in  the  United  States,  and  in  England, 
France,  and  other  Christian  nations  of  Europe. 

"The  representatives  present,  of  France,  England, 
Brazil,  Bolivia,  Chili,  and  Italy,  contended  for  the  right 
of  asylum,  and  opposed  the  resolutions. 

"The  Peruvian  government  insists  on  being  placed 
upon  a  footing  with  civilized  nations  of  the  world.  You 
will  thus  see  that  I  have  alone  supported  the  position 
assumed  by  the  authorities  of  Peru.  I  do  not  believe 
that  the  history  of  Peru  can  furnish  a  single  example 
where  the  innocent  have  been  shielded  by  asylum; 
nearly  all  the  cases  of  which  I  have  heard  are  those 
applying  strictly  to  citizens  of  Peru  charged  with  con- 
spiracy or  treason. 

"One  case,  that  of  Captain  Carwell,  an  Englishman, 
turned  upon  the  point  of  his  contempt  of  court  in  an 
order  made  for  the  delivery  of  property.  Refusing 
to  obey  the  warrant  of  the  court,  he  fled  for  protection 
to  the  English  legation,  from  whence,  after  eleven 
months,  he  made  his  escape,  still  refusing  to  obey  the 
orders  of  the  court,  and  taking  with  him  the  property 
in  dispute. 

"Another  case,  which  transpired  shortly  before  my 
arrival,  was  that  of  General  Canseco,  vice-president  of 
the  republic,  charged  with  conspiracy  against  the  gov- 
ernment; he  remained  in  the  legation  of  the  United 


246  INTERNATIONAL   POLICE 

States  some  three  or  four  months,  where  he  was  in  daily 
communication  with  his  co-conspirators.  At  length  he 
agreed  with  President  Pezet  to  exile  himself  to  Chili 
upon  the  payment  of  one  year 's  salary ;  he  received  the 
pay,  was  permitted  to  depart,  landed  in  two  days  upon 
the  coast  of  Peru,  and  a  few  weeks  afterward  returned 
with  an  invading  army  to  the  walls  of  Lima. 

"The  third  case  involves  the  question  now  pending 
between  France  and  Peru,  and  arose  by  asylum  being 
given  by  the  French  legation  on  the  20th  of  December, 
1865,  to  three  Peruvians,  charged  by  the  central  court 
with  peculation,  conspiracy,  and  treason. 

'  *  Two  of  the  same  gentlemen  applied  to  me  and  were 
refused.  This  gave  rise  to  my  dispatch  No.  4,  already 
alluded  to,  on  this  question. 

'  *  The  French  charge  d  'affaires,  Mr.  Emile  Vion,  re- 
fused to  acknowledge  the  right  of  the  government  to  ar- 
rest them,  although  the  officers  of  the  law  demanded 
them  under  writs  from  the  central  court.  The  charge 
d'affaires  referred  the  case  to  the  Emperor  of  France, 
and  his  action  was  approved;  but  the  charge  d'affaires 
was  ordered  to  solicit  the  settlement  of  the  question  of 
asylum  by  the  Peruvian  government  and  the  diplomatic 
corps  resident  in  Lima.  As  no  person  arrested  by  the 
government  upon  any  charge  has  as  yet  suffered  the 
extreme  penalty,  it  is  apparent  that  the  plea  of  cruelty 
or  barbarity  cannot  be  sustained  as  the  cause  for  giv- 
ing asylum.  Peruvians  were  dealing  with  Peruvians, 
and  should,  in  my  opinion,  have  been  left  to  their  own 
laws  and  courts.  The  practice  of  giving  asylum  has 
been  and  still  is  a  prolific  source  of  revolutions  in,  and 
the  instability  of,  the  South  American  republics.  The 
traitor,  who  would  for  his  own  ambition  steep  his  coun- 
try in  blood,  feels  assured  that  if  he  fails  in  his  rebel- 
lion he  has  only  to  flee  to  the  house  of  some  minister, 
and  that  there  he  will  find  a  refuge  beyond  the  reach  of 


HUMANITAEIAN  ASYLUM  247 

justice.  Thus  encouraged,  and  the  high  crime  of  trea- 
son varnished  over  with  the  soft  name  of  ' '  political  of- 
fence," he  launches  recklessly  into  his  ambitious 
schemes,  and  the  country  is  kept  in  continual  commo- 
tion. If  there  should  be  a  single  unfriendly  minister  to 
the  government  here,  (and  there  always  is),  his  lega- 
tion at  once  becomes  the  asylum  and  headquarters  for 
the  conspirators  against  the  government.  Is  it  strange, 
then,  that  revolutions  here  are  so  common?  In  my  opin- 
ion, that  man  will  prove  a  benefactor  to  South  America 
who  breaks  down  this  ancient  relic  of  barbarism  and 
aids  in  bringing  the  guilty  to  the  quick  punishment  of 
the  laws  against  which  they  may  have  offended. 

"With  childlike  faith  Peru  trusts,  at  least  for  moral 
aid,  to  the  United  States,  and  I  submit  that,  by  placing 
her  upon  a  level  with  other  Christian  nations,  the 
chances  of  her  advancement  would  be  greatly  increased, 
as  permanent  governments  would  more  securely  fol- 
low." (Diplomatic  Correspondence,  1867,  Pt.  II,  p. 
736-8.) 

But  the  international  practice  of  the  principal  states 
has  continued  to  recognize  the  legality  of  political 
asylum  in  certain  states  of  Latin  America,  and  the  two 
most  recently  published  volumes  of  the  Foreign  Rela- 
tions of  the  United  States  show  that  that  Government 
also  recognized  by  its  practice  the  legality  of  humani- 
tarian asylum  when  used  in  a  nonpartisan  manner  to 
save  the  life  of  political  refugees  and  to  permit  them 
to  escape  from  the  country. 

The  general  practice  of  the  United  States  in  regard 
to  what  Secretary  Knox  designated  as  "temporary 
refuge, ' '  in  contradistinction  to  * '  permanent  asylum, ' ' 
was  embodied  in  his  instructions  to  the  Consul  General 
at  Guayaquil,  Ecuador,  April  5, 1910,  as  follows :  "You 
may  in  your  discretion  afford  temporary  refuge  where 


248  INTERNATIONAL   POLICE 

such  is  necessary  in  order  to  preserve  innocent  human 
life."    (Foreign  Relations,  1912,  p.  399,  note.) 

Early  in  January,  1912,  it  would  appear  that  the 
American  Minister  advised  the  Consul  General  at 
Guayaquil,  and  the  Commander  of  the  Yorktown  "to 
receive  no  political  refugees,"  but  in  his  dispatch  of 
January  30,  1912,  Secretary  Knox  instructed  the 
American  Minister: 

"You  are  correct  in  assuming  that  what  is  technical- 
ly known  as  'the  right  of  asylum'  in  a  strict  sense  is 
not  claimed  by  this  government.  However,  there  is  an 
evident  distinction  between  this  case  and  that  where 
temporary  refuge  is  given  within  the  residence  of  a 
consular  or  diplomatic  representative  in  order  to  pre- 
serve innocent  human  life.  The  general  practice  of  the 
Department  on  the  subject  of  temporary  refuge  is  em- 
bodied in  an  instruction  to  the  Consul  General  at 
Guayaquil  which  you  will  find  in  the  files  of  the  Le- 
gation. [See  instruction  of  April  5,  1910,  above.] 

"In  the  case  of  temporary  refuge,  the  Department 
finds  it  expedient  to  give  a  certain  latitude  to  the  judg- 
ment of  the  official  who  is  called  upon  to  determine, 
within  his  discretion,  the  course  recommended  by  broad 
considerations  of  humanity  in  each  individual  case.  It 
is  accordingly  the  general  rule  of  the  Department  to 
place  all  emphasis  upon  the  responsibility  of  the  con- 
sular or  diplomatic  officer  in  the  matter  and  to  permit 
him,  within  these  limitations,  at  his  discretion  to  af- 
ford temporary  refuge  where  such  is  necessary  to  pre- 
serve innocent  human  life."  (Foreign  Relations,  1912, 
p.  399.) 

In  his  dispatch  of  March  18,  1912,  the  American 
Charge,  Bingham,  at  Quito,  Ecuador,  reports  the  dis- 
turbed condition  of  affairs,  and  the  possibility  of  fur- 
ther violence  resulting  in  a  "state  of  affairs  closely 


HUMANITARIAN  ASYLUM  249 

resembling  anarchy."  Charge  Bingham's  report  con- 
tinues : 

"As  a  proof  that  much  anxiety  is  felt  by  all  classes, 
I  have  the  honor  to  inform  the  Department  that  several 
individuals  have  requested  asylum  in  this  legation  in 
case  of  further  disturbance  in  Quito.  To  everyone  who 
has  asked  for  asylum  I  have  replied  that  the  Depart- 
ment of  State  deprecates  the  granting  of  asylum  ex- 
cept where  it  is  absolutely  necessary  from  the  point  of 
view  of  humanity,  to  save  life ;  that  I  could  not  discuss 
a  hypothetical  question  of  future  danger  but  must  de- 
cide each  case  on  its  merits  as  it  arose ;  and  I  strongly 
urge  the  individuals  in  question  to  adopt  every  other 
means  of  securing  their  safety  in  case  of  trouble  in- 
stead of  coming  to  this  Legation,  as  I  desired  to  hold 
absolutely  aloof  from  all  internal  question. ' '  (Foreign 
Relations,  1912,  p.  406.) 

In  China,  during  the  disturbances  of  1911,  the  Ameri- 
can Vice  Consul  at  Foochow  telegraphed:  "The  right 
of  asylum  may  be  requested  by  the  mandarins.  In- 
structions requested."  (Foreign  Relations,  1912,  p. 
173.) 

Acting  Secretary  of  State  Adee  replying  the  same 
day  that  this  arrived,  November  7,  1911,  sent  the  fol- 
lowing instructions :  ' '  The  right  of  consular  asylum  is 
not  claimed  by  this  government,  but  you  may  use  your 
discretion  as  to  granting  temporary  lefuge  where  such 
is  necessary  to  preserve  innocent  human  life,  carefully 
avoiding  action  that  might  appear  partisan."  (Ibid, 
p.  174.) 

Three  days  later,  the  American  Charge  Williams  at 
Peking  telegraphed:  "Asylum  at  the  Legation  has 
been  asked  by  the  Emperor  and  Empress  Dowager, 
which  I  strongly  urge  be  granted."  (Foreign  Rela- 
tions, 1912,  p.  174.)  To  this,  Secretary  of  State  Knox 
replied  with  the  accustomed  formula:  "In  accordance 


250  INTERNATIONAL   POLICE 

with  the  uniform  policy  of  this  government  you  may 
at  your  discretion  afford  temporary  refuge  where  such 
is  necessary  to  preserve  innocent  human  life,9  first  as- 
certaining that  your  colleagues  believe  safety  of  the 
legation  quarter  not  thereby  endangered."  (Ibid,  p. 
174.) 

On  October  24,  1912,  the  American  Consul  at  Vera 
Cruz,  Mexico,  telegraphed  for  instructions:  "No  for- 
eigners hurt  or  property  destroyed.  City  in  the  pos- 
session of  Federals.  Diaz  is  a  prisoner;  if  asylum  is 
asked  for  will  be  refused. "  (Ibid,  p.  924.)  Secretary 
Knox,  who  had  received  the  American  Charge's  report 
of  October  27,10  repeated  the  portion  of  the  American 
Consul's  telegram  regarding  asylum  for  General  Felix 
Diaz,  and  instructed  the  Charge  as  follows :  *  *  The  De- 
partment presumes  there  will  be  no  occasion  either  to 
grant  or  to  refuse  asylum  to  Diaz,  since  he  is  held  a 
prisoner  by  Mexican  Federal  forces.  You  will  inform 
the  Consul  at  Vera  Cruz,  however,  that  the  position  of 
the  Department  with  regard  to  asylum  is  as  follows: 
'The  Government  of  the  United  States  does  not  claim 
what  is  technically  known  as  the  right  of  asylum  in  the 
strictest  sense.  There  is,  however,  an  evident  distinc- 
tion between  cases  of  this  kind  and  cases  in  which  tem- 
porary refuge  is  given  in  order  to  preserve  innocent 
human  life.  In  cases  of  the  latter  kind  the  Department 
of  State  finds  it  expedient  to  give  a  certain  latitude  to 
the  judgment  of  the  officer  who  is  called  upon  to  de- 
termine within  his  discretion  the  course  recommended 


'Exactly  what  is  meant  by  ' '  innocent  human  life ' '  does  not 
appear  from  the  correspondence,  nor  are  we  informed  whether 
Mr.  Williams  considered  that  this  designation  would  apply  to 
and  include  the  Empress  Dowager. 

10The  American  Charge,  in  his  dispatch  of  October  27  had 
reported  as  follows: 

"Both  Mexicans  and  foreigners  have  crowded  this  Em- 
bassy asking  that  I  take  some  action  with  President  Madero  in 


HUMANITARIAN  ASYLUM  251 

by  broad  considerations  of  humanity  in  each  individual 
case.  It  is  accordingly  the  general  rule  of  the  Depart- 
ment of  State  to  place  all  emphasis  upon  the  responsi- 
bility of  the  officer  concerned  and  to  permit  him  within 
these  limitations,  at  his  discretion,  to  afford  temporary 
refuge  where  such  is  necessary  to  preserve  innocent 
human  life. '  "  (Ibid,  p.  925-6.) 


behalf  of  Diaz,  some  insisting  that  he  should  not  be  executed ; 
others  that  such  execution  be  postponed.  I  have  replied  to 
one  and  all  that  the  embassy  could  not  under  any  circum- 
stances take  action  or  make  representations,  as  his  case  was 
one  of  Mexican  internal  politics. 

"Similar  visits  of  committees  from  their  colonies  with  pe- 
tition to  take  some  action  for  the  sake  of  humanity  have  been 
received  by  the  other  members  of  the  Diplomatic  Corps,  who 
have  been  much  excited  over  the  reported  determination  to 
execute  Diaz.  The  wife  of  the  Spanish  Minister  (acting  Dean 
of  the  Diplomatic  Corps),  herself  a  Mexican  by  birth,  went  to 
see  the  Maderos,  but  was  coldly  received.  The  British  Min- 
ister was  very  active  for  a  time,  saying  that  of  course  he  could 
not  act  in  the  name  of  his  government  without  instructions, 
but  was  acting  for  his  colony.  German  and  French  Ministers 
will  do  nothing. 

' '  Madero  has  made  a  speech,  in  reply  to  a  manifestation,  in 
which  he  concludes :  '  General  Diaz  will  be  punished  with  all 
rigor.  And  I  know  very  well  that  it  is  the  wish  of  the  nation 
that  the  blood  of  the  guilty  wash  out  the  blood  shed  by  General 
Diaz  on  June  25,  1879."  (Foreign  Relations,  1912,  p.  924.) 

Relative  to  the  occurrences  of  1879,  John  W.  Foster  relates 
an  interesting  incident  which  took  place  at  the  time  that  he 
was  minister  to  Mexico,  during  the  interregnum  before  Gen- 
eral Diaz  arrived  in  Mexico  City.  Mr.  Foster  had  invited 
members  of  the  American  Colony  to  the  legation,  and  they 
came  armed.  Mr.  Foster  relates:  "Our  vigil  passed  with 
only  two  interruptions.  A  Senator  called  at  an  early  hour  to 
ask  if  he  might  become  my  temporary  guest.  He  had  been  a 
champion  in  Congress  of  the  Lerdo  regime  and  showed  much 
bitterness  towards  the  Diaz  movement,  and  feared  that  he 
might  be  exposed  to  insult,  if  not  danger,  from  excited  parti- 
sans of  Diaz  before  order  was  established.  He  was  my  personal 
friend  and  I  was  glad  to  give  him  a  room  in  my  house.  In  the 
early  hours  of  the  morning  General ,  a  gallant  old  soldier, 


252  INTERNATIONAL   POLICE 

One  year  later,  when  General  Diaz  found  "tempo- 
rary refuge"  on  the  American  warship  Wheeling,  Sec- 
retary of  State  Bryan  in  a  letter  of  October  28, 1913,  to 
the  Secretary  of  the  Navy,  explained  the  attitude  of  the 
Department  of  State: 

"I  have  the  honor  to  acknowledge  the  receipt  of  your 
letter  of  this  date  transmitting  a  copy  of  a  telegram 
received  by  you  from  Admiral  Fletcher,  at  Vera  Cruz, 
with  reference  to  the  action  of  the  U.  S.  S.  Wheeling 
in  taking  on  board  General  Diaz  and  two  friends,  and 
Williams,  American  correspondent  of  the  New  York 
Herald. 

"In  this  connection  I  beg  to  advise  that,  while  the 
rule  governing  such  cases  is  that  it  is  the  duty  of 
American  men-of-war  to  protect  American  citizens,  it 
is,  as  a  general  rule,  against  the  policy  of  this  govern- 
ment to  grant  asylum  in  its  ships  to  the  citizens  of 
foreign  countries  engaged  in  political  activity,  especial- 
ly when  such  asylum  is  for  the  purpose  of  furthering 
their  political  plans.  Temporary  shelter  to  such  per- 
sons, when  they  are  seeking  to  leave  their  country,  has 
sometimes  been  conceded  on  grounds  of  humanity,  but 

a  former  Minister  of  War,  my  near  neighbor,  for  a  similar 
reason  also  asked  to  become  my  guest,  and  brought  with  him 
his  favorite  war-horse,  the  companion  of  many  campaigns,  a 
noble  animal.  I  gave  the  General  my  best  chamber  and  quar- 
tered the  charger  in  the  Legation  patio.  My  two  distinguished 
guests  remained  with  me  for  forty-eight  hours  only,  but  an 
amusing  and  somewhat  embarrassing  condition  was  developed. 
These  two  gentlemen,  while  both  hostile  to  the  Diaz  movement, 
were  bitter  personal  enemies,  and  could  not  be  brought  to- 
gether at  my  table  or  in  my  family  circle.  So  they  were  volun- 
tary recluses  in  their  own  apartments  during  their  stay.  The 
practice  of  resort  by  public  men  to  legation  asylum  is  quite 
common  in  Latin-American  States  in  time  of  disorder  and 
revolution,  but  my  experience  in  this  instance  was  unique,  in 
that  the  Legation  at  one  and  the  same  time  afforded  protection 
to  public  men,  bank  treasurers,  and  war-horses."  (John  W. 
Foster:  Diplomatic  Memoirs,  vol.  I,  p.  81.) 


HUMANITABIAN  ASYLUM  253 

even  this  is  done  with  great  circumspection  lest  advan- 
tage be  taken  of  it  to  further  the  political  fortunes  of 
individuals  with  the  result  of  involving  us  in  the  do- 
mestic politics  of  foreign  countries. 

"In  this  case  you  will  please  direct  the  commander 
of  the  Wheeling  to  furnish  Williams,  the  American  cor- 
respondent of  the  New  York  Herald,  who,  we  take  it  for 
granted,  is  not  a  citizen  of  Mexico,  asylum  on  the  Ameri- 
can ship  until  he  can  secure  passage  to  the  United 
States.  In  the  case  of  General  Diaz  and  his  two 
friends,  you  will  give  them  temporary  asylum  until 
they  can  find  a  ship  to  take  them  away  from  Mexico,  it 
being  taken  for  granted  that  they  do  not  desire  to  re- 
main in  Mexico.  They  will,  of  course,  understand  that 
while  they  are  on  an  American  ship  they  cannot  use 
it  as  a  basis  for  political  activity."  (Foreign  Rela- 
tions, 1913,  p.  854-5.) 

We  learn  from  the  report  of  the  American  Consul  at 
Matamoras,  of  April  7,  1913,  that  he  permitted  Gen- 
eral Estrada  to  remain  with  him  for  sixteen  days. 
The  Consul  explained  his  action  as  follows :  ' '  The  old 
General  could  not  get  across  the  river  without  great 
danger,  and  I  thought  it  an  act  of  humanity  to  protect 
him.  I  have  refused  others  protection  but  I  deemed 
his  case  a  very  meritorious  one.  I  hope  and  trust  that 
I  did  not  commit  a  great  wrong."  (Ibid,  p.  789.) 

In  reply,  Mr.  Carr,  writing  for  Secretary  Bryan, 
instructed  the  Consul  as  follows:  " While  the  Depart- 
ment is  not  inclined  to  disapprove  your  action  under 
the  circumstances  as  you  explain  them,  it  is  not  en- 
tirely clear  that  it  was  necessary  for  such  protection  to 
be  extended  over  so  long  a  period  of  time,  especially 
in  view  of  the  proximity  of  the  international  border. 

"In  this  connection  it  seems  pertinent  to  invite 
your  attention  to  the  Department's  standing  instruc- 
tions that,  while  indisposed  to  direct  its  representa- 


254  INTERNATIONAL   POLICE 

tives  to  deny  temporary  shelter  to  any  person  whose 
life  may  be  immediately  threatened,  this  government 
does  not  sanction  the  usage  of  asylum  and  enjoins  upon 
its  representatives  the  avoidance  of  all  pretexts  for  its 
exercise. 

"Your  action  therefore  in  similar  cases  which  may 
arise  in  the  future  should  be  limited  to  the  affording 
of  protection  only  when  it  appears  to  be  absolutely  nec- 
essary for  the  preservation  of  life11  and  should  be  in 
the  nature  of  temporary  refuge.  It  should  be  distinctly 
understood  that  the  protection  extended  should  be 
strictly  limited  as  indicated,  and  that  no  promise  of 
shelter  should  be  given  in  advance  of  an  emergency 
seeming  to  call  therefor."  (Foreign  Kelations,  1913, 
p.  796-7.) 

If  any  further  evidence  were  needed  conclusively  to 
demonstrate  the  existence  in  certain  states  of  South 
America  of  a  well  recognized  practice  of  granting 
asylum  in  the  case  of  political  refugees,  we  might  give 
the  incident  of  President  Leguia,  of  Peru,  who  was 
deposed  by  a  revolution.  In  his  dispatch  of  July  27, 
1913,  the  American  Minister  reported  that  President 
Leguia,  whose  residence  was  attacked  by  a  mob 
"asked  for  and  was  offered  asylum  at  the  legation  in 
protection  of  innocent  human  life,  if  he  could  make  his 
escape."  But  the  President  and  his  son  were  arrested 
and  placed  in  the  penitentiary.  Secretary  Bryan  on 
August  4,  1913,  instructed  the  American  Minister  to 
"leave  undone  nothing"  he  could  properly  do  to  save 
the  lives  of  the  President  and  his  son  and  the  Vice- 
President. 

The  American  Minister's  report  of  July  31  gives  the 
following  information:  "Vice-President  Leguia  [a 
brother  of  the  President]  has  been  given  asylum  by  the 

"It  will  be  noticed  that  Mr.  Carr  has  dropped  the  limitation 
that  the  life  saved  should  be  "innocent." 


HUMANITARIAN  ASYLUM  255 

Italian  Minister,  who  informed  the  Foreign  Office  on 
July  26  of  the  rumored  attempt  on  the  life  of  ex-Presi- 
dent Leguia,  who  is  still  a  prisoner.  The  representa- 
tions of  the  Italian  Minister  were  supported  by  the 
British  and  Brazilian  Ministers  and  my  own,  asking 
for  an  ample  guard.  The  Under  Secretary  of  State 
assured  me  later  that  he  had  communicated  these  rep- 
resentations to  the  President."  (Foreign  Relations, 
1913,  p.  1142.) 

On  August  10,  ex-President  Leguia  was  permitted  to 
sail  with  his  son  for  Panama.  In  his  dispatch  of  Au- 
gust 19,  the  American  Minister  reported  as  follows  to 
the  Secretary  of  State  regarding  the  asylum  which  had 
been  granted  by  the  representatives  of  Italy  and 
France : 

"I  have  been  favored  by  the  Italian  Minister  with 
a  copy  of  his  note  addressed  to  the  Foreign  Office,  dated 
July  25,  1913,  informing  the  Peruvian  Government 
that  Vice-President  Roberto  Leguia  had  taken  refuge, 
and  been  given  asylum,  in  that  Legation  on  that 
day.  It  will  be  noted  that  such  asylum  was  sought  the 
same  night  on  which  the  residence  of  the  former  Presi- 
dent was  attacked.  The  French  Minister  also  informed 
me  that  another  brother,  Carlos  Leguia,  Vice-Presi- 
dent of  the  Senate,  had  asked  for,  and  been  offered 
asylum  in  the  French  Legation,  provided  he  found 
that  the  necessity  therefor  should  exist. 

"The  Peruvian  Foreign  Office  replied  to  the  Italian 
Minister  on  July  29  stating  that  no  order  for  the  ar- 
rest of  the  Sefior  Leguia  in  question  had  been  issued. 
It  was  then  that  the  latter  left  the  Italian  Legation. 
I  have  learned  that  the  Italian  Minister,  in  addition  to 
writing  the  Foreign  Office,  personally  asked  for  and  was 
furnished  a  guard  of  half  a  dozen  soldiers,  who  were 
placed  within  the  Legation  residence. 


256  INTERNATIONAL   POLICE 

"I  have  sought  this  information  because  it  will  pre- 
serve written  evidence  of  the  recognition  by  the  Peru- 
vian Government  of  the  right  of  a  political  refugee 
to  seek  and  be  accorded  asylum  in  the  legation  of  a 
foreign  country,  which  may  prove  of  value  in  the  fu- 
ture and  serve  as  a  precedent."  (Foreign  Relations, 
1913,  p.  1145.) 

In  many  of  the  instances  in  which  fugitives  have 
been  received  in  legations  and  consulates  to  save  their 
lives  from  mob  violence,  the  action  taken  was  not 
necessarily  opposed  to  the  will  of  the  de  facto  gov- 
ernment, but  it  is  sometimes  hard  to  draw  the  line  be- 
tween mob  violence  and  revolutionary  activity. 

It  cannot  be  denied  that  political  asylum  in  legations 
and  warships  is  a  form  of  humanitarian  intervention 
which  easily  opens  the  door  to  interference  in  the 
political  affairs  of  the  state.  It  is  hard  to  separate 
political  offences  from  ordinary  crimes,  and  this  often 
leads  to  friction  between  the  local  authorities  and  the 
foreign  official  who  has  taken  the  fugitive  under  his 
protection.12 


12Millard's  Review,  in  its  number  of  August  21,  1920,  dis- 
cussing the  Presidential  Mandate  for  the  arrest  of  the  Anfu 
leaders,  states  that  nine  out  of  the  10  leaders  were  in  the  Jap- 
anese Legation  at  Peking,  and  quotes  the  French  daily  paper 
of  Peking  as  having  called  the  place  in  which  they  were  living 
the  "Hotel  Obata."  (Millard's  Review,  Aug.  21,  1920,  p. 
625.) 

The  same  Review,  in  a  later  number,  (September  18,  1920, 
page  112)  carries  a  picture  reproducing  a  cartoon  by  a  Rus- 
sian artist  in  Shanghai,  showing  the  "Chinese  Anfu  'traitors' 
in  their  present  role  as  'guests'  of  the  Japanese  Legation  in 
Peking. ' '  Over  this  illustration,  there  is  the  title  ' '  Mr.  Obata 's 
Anfu  guests." 

Japanese  conduct  is  criticized  in  an  article  too  long  for  us 
to  quote  in  full.  It  is  stated  that  Mr.  Obata,  Japanese  Minister 
to  China,  having  learned  that  the  Minister  of  Foreign  Affairs 
intended  to  ask  for  the  extradition  of  the  Anfu  leaders  on  the 
ground  that  they  were  not  political  offenders,  and  that  they 


FOREIGN  COMMERCE  257 

As  soon  as  any  state  demonstrates  its  capacity  to 
fulfil  all  the  obligations  of  international  law,  and  to 
preserve  throughout  its  territory  a  reasonable  respect 
for  law  and  property,  it  will  acquire  the  confidence  of 
other  states.  We  may  expect  that  in  the  course  of 
time,  humanitarian  asylum  will  disappear  from  Latin 
America  as  completely  as  it  has  vanished  from  Europe. 

As  yet,  however,  the  most  powerful  and  civilized 
states  have  not  considered  that  this  form  of  interven- 
tion can  be  abolished  in  the  case  of  those  less  civilized 
states  where  revolutions  are  frequent  and  the  ensuing 
executions  and  cruelties  constitute  a  reproach  not  only 
to  the  participants,  but  also  to  those  who  refuse  to  in- 
tervene to  help  the  victims. 

§  8(g).    FOREIGN  COMMERCE 

There  is  still  another  field  of  application  for  humani- 
tarian intervention,  which  relates  to  the  commerce  of 
other  states  and  it  is  therefore  of  considerable  impor- 
tance. Action  of  this  kind  gives  rise  to  questions  of 
great  delicacy,  and  necessitates  the  closest  juridical 

had  committed  criminal  offenses,  sent  to  the  Minister  of  For- 
eign Affairs,  under  date  of  August  27th,  the  following  note : 

"I  have  the  honor  to  acknowledge  the  receipt  of  Your  Ex- 
cellency's note,  dated  August  22,  replying  to  my  note  of 
August  9,  on  the  subject  of  Mr.  Hsu  Shu-Cheng  and  others 
who  are  in  the  Imperial  Legation  Guard  Compound. 

' '  In  that  note  it  is  stated  that  your  government  is  unable  to 
accede  to  the  contents  of  my  previous  note  and  that  you  will 
make  further  communication  to  me  based  upon  judicial  evi- 
dences. 

' '  I  now  have  the  honor  to  state  in  reply  that  in  view  of  the 
facts  that  the  Presidential  Mandate  looking  to  the  arrest  of 
the  individuals  in  question  was  issued  on  political  grounds, 
and  that  this  legation  is  giving  them  refuge  as  political  offend- 
ers, I  shall  not  be  in  a  position  to  comply  with  the  request  of 
extradition,  irrespective  of  any  criminal  offences  with  which 
they  may  be  charged."  (Ibid,  p.  112-113.) 
17 


258  INTERNATIONAL  POLICE 

reasoning.  We  find  three  forms  of  application,  name- 
ly: Eegulation  of  Foreign  Shipping ;  Denial  of  Trans- 
it; Prohibition  of  Entry. 

EEGULATION  OF  FOREIGN  SHIPPING 

Certain  legislative  enactments  undertake  to  compel 
foreign  states  to  adopt  for  their  vessels  regulations 
which  will  protect  the  lives  of  passengers  and  guaran- 
tee the  humane  treatment  of  all  seamen. 

The  manner  in  which  this  humanitarian  object  has 
been  achieved  is  well  illustrated  in  the  case  of  the 
Plimpsoll  Act,  by  which  Great  Britain  undertook  to 
penalize  vessels  entering  or  leaving  her  ports  loaded 
beyond  the  point  of  safety.13 

As  finally  enacted,  §  24  of  the  Merchant  Ship  Act, 
1876,  reads  as  follows: 

"After  the  first  day  of  November,  one  thousand 
eight  hundred  and  seventy-six,  if  a  ship,  British  or 
foreign,  arrives  between  the  last  day  of  October  and 
the  sixteenth  day  of  April  in  any  year  at  any  port  in 
the  United  Kingdom  from  any  port  out  of  the  United 
Kingdom,  carrying  as  deck  cargo,  that  is  to  say,  in  any 
uncovered  space  upon  deck,  or  in  any  covered  space 
not  included  in  the  cubical  contents  forming  the  ship 's 
registered  tonnage,  any  wood  goods  coming  within  the 

following  descriptions the  master  of  the  ship,  and 

also  the  owner,  if  he  is  privy  to  the  offense,  shall  be 
liable  to  a  penalty  not  exceeding  five  pounds  for  every 
hundred  cubic  feet  of  wood  goods  carried  in  contra- 
vention of  this  section,  and  such  penalty  may  be  re- 
covered by  action  or  on  indictment  or  to  an  amount  not 
exceeding  one  hundred  pounds  (whatever  may  be  the 


13For  a  concise  account  of  this  legislation,  see  Stowell  and 
Munro :  International  Cases,  vol.  I,  p.  439-445.  We  have  bor- 
rowed a  few  extracts  from  this  account. 


FOREIGN  COMMERCE  259 

maximum  penalty  recoverable)  on  summary  convic- 
tion." (English  Law  Reports  (1876),  Statutes,  vol. 
XI,  pp.  502-03.) 

When  this  provision  of  the  Act  of  1876  was  called  to 
the  attention  of  the  United  States,  "The  Department 
of  State,"  to  borrow  the  words  of  Professor  J.  B. 
Moore,  "replied  that,  as  attention  was  thus  particu- 
larly called  to  the  questions  under  section  24,  it  seemed 
proper  to  state  that  the  right  to  impose  penalties  on 
the  master  or  owner  of  an  American  vessel,  sailing 
from  a  port  of  the  United  States,  for  the  manner  in 
which  the  cargo  was  laden  or  stored,  was  of  so  doubt- 
ful a  character  that,  however  wise  or  beneficent  the 
intent  of  the  act  might  be,  the  Government  of  the 
United  States  'cannot  but  invite  the  attention  of  Her 
Majesty's  Government  particularly  thereto,  before 
further  steps  are  taken  in  Great  Britain  to  enforce 
obedience  to  the  law  in  these  particular  cases,  and  be- 
fore any  steps  be  taken  toward  the  enforcement  of  fines 
in  these  or  similar  cases. ' 

"The  representations  of  the  United  States  'appear 
to  have  received  the  careful  attention  of  the  Govern- 
ment of  Great  Britain,  and  toward  the  close  of  the  year 
1877,  the  minister  of  the  United  States  at  London  re- 
ceived a  note  from  Lord  Derby,  justifying  the  provis- 
ions of  the  act  adverted  to,  which  had  been  specially 
made  the  subject  of  complaint,  as  not  inconsistent  with 
the  principles  of  international  law,  or  with  the  practice 
of  nations  in  such  matters/  and  expressing  the  hope 
that  the  United  States  would  'yield  the  provisions  of 
the  act  mentioned  a  friendly  support,  by  enjoining  its 
observance  on  the  part  of  American  shippers  and  own- 
ers of  vessels,  in  the  interest  of  humanity/  The  sub- 
ject thereafter  'failed  to  become  one  of  special  action 
on  the  part  of  the  United  States.'  "  (Moore's  Inter- 
national Law  Digest,  Vol.  II,  §  204,  p.  282-3.) 


260  INTERNATIONAL   POLICE 

The  Act  of  1876  was  consolidated  without  modifica- 
tion in  1894,  and  Parliament  in  1906  passed  an  act 
amending  the  Merchant  Shipping  Acts  by  the  addition, 
amongst  others,  of  several  provisions  affecting  foreign 
shipping.  The  British  loadline  provisions  were  made 
to  apply  to  foreign  ships  "while  they  are  within  any 
port  of  the  United  Kingdom, ' '  the  power  to  detain  un- 
safe ships  of  foreign  nationality  was  extended  to  in- 
clude cases  of  defective  equipment,  and  power  was 
given  to  apply  rules  as  to  life-saving  appliances  to  for- 
eign ships  "provided  that  His  Majesty  may  by  Order 
in  Council  direct  that  these  provisions  shall  not  apply 
to  any  ship  of  a  foreign  country  in  which  the  provisions 
in  force  relating  to  life-saving  appliances  appear  to 
His  Majesty  to  be  as  effective  as  the  provisions  of  Part 
V  of  the  principal  act,  on  proof  that  these  provisions 
were  complied  with  in  the  case  of  that  ship."  (Stat- 
utes (1905-06),  pp.  248-49.)  But  the  most  significant 
extension  of  jurisdiction  in  1906  was  that  laid  down  in 
the  section  relating  to  foreign  ships  carrying  cargoes 
of  grain,  as  follows : 

"If  after  the  first  day  of  October,  one  thousand  nine 
hundred  and  seven,  a  foreign  ship  laden  with  grain 
cargo  arrives  at  any  port  in  the  United  Kingdom  hav- 
ing the  grain  cargo  so  loaded  that  the  master  of  the 
ship,  if  the  ship  were  a  British  ship,  would  be  liable  to 
a  penalty  under  the  provisions  of  Part  V  of  the  princi- 
pal act  relating  to  the  carriage  of  grain,  the  master  of 
that  foreign  ship  shall  be  liable  to  a  fine  not  exceeding 
three  hundred  pounds.14  (Statutes  (1905-06),  p.  248. 
The  two  preceding  paragraphs  are  copied  from  Stowell 
and  Munro's  Cases,  vol.  I,  p.  442-3.) 

"From  the  testimony  of  the  President  of  the  American  Sea- 
men's Union,  Mr.  Andrew  Furuseth,  given  before  the  Senate 
Committee,  we  take  the  following  extract : 

"MB.  FURUSETH.  I  want  to  call  attention  to  this :  That  one 
of  the  things  that  was  advocated  by  some  of  the  members  sit- 


FOREIGN  COMMERCE  261 

The  Seamen's  Act  of  March  4, 1915,  popularly  known 
as  the  La  Follette  Act,  contains  several  provisions 
which  like  the  British  Acts  above  referred  to,  exercise 
by  means  of  penalties  imposed  within  American  juris- 
diction a  certain  control  over  foreign  vessels,  even 
when  they  are  outside  of  American  waters.  Section 
13  of  the  Act  in  part  provides : 

"That  no  vessel  of  one  hundred  tons  gross  and  up- 
ward, except  those  navigating  rivers  exclusively  and 
the  smaller  inland  lakes  and  except  as  provided  in  sec- 
tion one  of  this  Act,  shall  be  permitted  to  depart  from 
any  port  of  the  United  States  unless  she  has  on  board 
a  crew  not  less  than  seventy-five  per  centum  of  which, 
in  each  department  thereof,  are  able  to  understand 
any  order  given  by  the  officers  of  such  vessel,  nor  un- 
less forty  per  centum  in  the  first  year,  forty-five  per 


ting  on  the  commission  of  1906,  the  report  of  which  you  have, 
was  that  the  laws  (British)  governing  English  seamen  should 
be  made  applicable  to  foreign  vessels. 

"SENATOR  BURTON.  I  noticed  that.  They  would  not  agree 
with  the  conclusions  unless  they  were  made  applicable  to  for- 
eign ships. 

"MR.  FURUSETH.  Exactly.  As  a  matter  of  fact,  the  laws 
dealing  with  deck  load,  the  laws  dealing  with  freeboard,  the 
laws  dealing  with  everything  that  has  to  do  with  safety  of  life 
among  passengers,  and . . .  among  the  employees, . . .  apply  to 
foreign  seamen  in  foreign  vessels  while  in  English  ports. 
Thus,  if  an  American  vessel  is  lying  in  a  port  of  England  and 
one  man  gets  hurt,  he  can  sue  the  American  vessel  in  the  Eng- 
lish court  under  the  British  compensation  act  now, . . .  and 
Parliament  gave  to  the  board  of  trade  definite  authority  to 
detain  vessels  that  were  undermanned  or  unseaworthy  by  rea- 
son of  being  undermanned,  and  they  exercise  that  authority 
not  only  over  native  vessels,  English  vessels,  but  they  exercise 
it  over  foreign  vessels . . .  Here  is  a  circular  issued  by  the  board 
of  trade  to  the  boarding  officers,  giving  them  instructions  how 
the  vessels  must  be  manned  as  a  minimum."  (Synopsis  of 
Hearing  before  the  Subcommittee  of  the  Committee  of  Com- 
merce of  the  Senate  relative  to  involuntary  servitude  imposed 
upon  seamen,  p.  43.) 


262  INTERNATIONAL   POLICE 

centum  in  the  second  year,  fifty  per  centum  in  the  third 
year,  fifty-five  per  centum  in  the  fourth  year  after  the 
passage  of  this  Act,  and  thereafter  sixty-five  per  cen- 
tum of  her  deck  crew,  exclusive  of  licensed  officers  and 
apprentices,  are  of  a  rating  not  less  than  able  seamen. ' ' 
(Seamen's  Act  of  March  4, 1915,  Sec.  13.) 

Further  along  the  same  section  provides :  '  *  The  col- 
lector of  customs  may,  upon  his  own  motion,  and  shall, 
upon  the  sworn  information  of  any  reputable  citizen 
of  the  United  States  setting  forth  that  this  section  is 
not  being  complied  with,  cause  a  muster  of  the  crew 
of  any  vessel  to  be  made  to  determine  the  fact ;  and  no 
clearance  shall  be  given  to  any  vessel  failing  to  comply 
with  the  provisions  of  this  section:" 

Section  14  of  the  Seamen's  Act  in  part  provides: 
"That  foreign  vessels  leaving  ports  of  the  United 
States  shall  comply  with  the  rules  herein  prescribed  as 
to  life-saving  appliances,  their  equipment,  and  the 
manning  of  same."  Then  follows  a  detailed  set  of 
regulations  specifying  the  type  and  number  of  the 
life-saving  appliances,  etc.  Detailed  regulations  are 
also  set  out  in  regard  to  the  qualifications  and  number 
of  men  for  the  manning  of  the  boats,  muster  rolls  and 
drills,  and  the  duties  assigned  by  the  muster  list  to  the 
different  members  of  the  crew  are  carefully  specified. 

"Before  the  vessel  sails,"  declares  the  Act  in  this 
same  section,  "the  muster  list  shall  be  drawn  up  and 
exhibited,  and  the  proper  authority,  to  be  designated 
by  the  Secretary  of  Commerce,  shall  be  satisfied  that 
the  muster  list  has  been  prepared  for  the  vessel.  It 
shall  be  posted  in  several  parts  of  the  vessel,  and  in 
particular  in  the  crew's  quarters." 

The  owner  of  any  vessel  who  neglects  or  refuses  to 
provide  and  equip  his  vessel  with  the  lifeboats,  etc., 
as  specified  in  the  Act,  is  subjected  to  a  fine,  as  is 
"...  every  master  of  a  vessel  who  shall  fail  to  comply 


FOREIGN  COMMERCE  263 

with  the  requirements  of  this  section,  and  the  regula- 
tions of  the  Board  of  Supervising  Inspectors,  approved 
by  the  Secretary  of  Commerce,  authorized  by  and  made 
pursuant  hereto."  (Seamen's  Act  of  March  4,  1915, 
§14.) 

In  so  far  as  these  regulations  are  reasonably  neces- 
sary to  provide  for  the  security  of  international  pas- 
senger travel,  the  United  States  is  justified  by  the 
principles  of  humanitarian  intervention,  which  we  have 
above  discussed,  in  using  its  sovereign  authority  over 
foreign  vessels  temporarily  sojourning  in  the  harbors 
of  the  United  States  to  compel  a  compliance  with  them, 
and  it  will  not  be  a  valid  objection  in  international  law 
that  the  United  States  does  in  effect  so  use  its  sov- 
ereign authority  to  regulate  the  action  of  the  vessels  in 
question,  even  when  they  are  without  the  jurisdiction 
of  the  United  States  and  upon  the  high  seas. 

The  United  States  would  be  amply  justified  in  re- 
fusing entry  to  any  and  all  foreign  vessels  failing  to 
regulate  their  commerce  so  as  to  provide  for  the  securi- 
ty and  humane  treatment  of  passengers  and  crew.  It 
is  evident  that  the  same  result  may  be  obtained  by  a 
less  drastic  method  of  penalizing,  while  within  the 
jurisdiction  of  the  United  States,  those  foreign  vessels 
that  fail  to  make  reasonable  provision  for  the  security 
and  humane  treatment  of  passengers  and  crew. 

Section  16  of  the  Seamen's  Act  of  March  4,  1915, 
applies  to  the  arrest  and  imprisonment  of  officers  and 
seamen  deserting  from  merchant  vessels.  It  reads  as 
follows : 

"That  in  the  judgment  of  Congress  articles  in  trea- 
ties and  conventions  of  the  United  States,  in  so  far  as 
they  provide  for  the  arrest  and  imprisonment  of  of- 
ficers and  seamen  deserting  or  charged  with  desertion 
from  merchant  vessels  of  the  United  States  in  foreign 
countries,  and  for  the  arrest  and  imprisonment  of  of- 


264  INTERNATIONAL   POLICE 

fleers  and  seamen  deserting  or  charged  with  desertion 
from  merchant  vessels  of  foreign  nations  in  the  United 
States  and  the  Territories  and  possessions  thereof,  and 
for  the  cooperation,  aid,  and  protection  of  competent 
legal  authorities  in  effecting  such  arrest  or  imprison- 
ment and  any  other  treaty  provision  in  conflict  with 
the  provisions  of  this  Act,  ought  to  be  terminated,  and 
to  this  end  the  President  be,  and  he  is  hereby,  request- 
ed and  directed,  within  ninety  days  after  the  passage 
of  this  Act,  to  give  notice  to  the  several  governments, 
respectively,  that  so  much  as  hereinbefore  described 
of  all  such  treaties  and  conventions  between  the  United 
States  and  foreign  governments  will  terminate  on  the 
expiration  of  such  periods  after  notices  have  been 
given  as  may  be  required  in  such  treaties  and  conven- 
tions." (Act  of  March  4, 1915,  §  16.) 

The  testimony  of  Mr.  Andrew  Furuseth,  President  of 
the  Seamen's  Union  of  America,  describes  the  pur- 
poses of  this  provision  as  follows : 

"  . .  .Giving  the  foreign  shipowner  the  right  to  ship 
his  men,  as  he  unquestionably  has  in  his  own  port,  to 
come  here,  and  then  giving  him  the  right  to  use  the 
machinery  of  the  American  police  and  courts  to  compel 
the  performance  of  a  contract  to  labor,  you  are  giving 
to  the  foreign  shipowner  a  privilege  you  have  refused 
to  your  own  citizens  long  ago,  and  by  so  doing  you  are 
putting  a  preferential  against  American  shipping. 
That  has  been  the  situation  in  the  past,  and  if  it  is  per- 
mitted to  go  on  will  be  sufficient  in  the  future  to  make 
any  competition  with  the  foreign  shipowner  in  the 
actual  ocean  trade  impossible.  If  you  apply  the  true 
American  principles  of  equal  freedom,  if  you  apply  the 
system  of  free  soil,  making  free  men,  which  the  Su- 
preme Court,  in  all  probability,  would  apply  if  it  were 
taken  to  it  to-day ;  if  you  accepted  that  proposition  and 
that  idea,  and  carried  it  out,  and  made  the  law,  as  you 


FOREIGN  COMMERCE  265 

make  it  here,  applicable  to  foreign  seamen  while  under 
the  jurisdiction  of  the  laws  of  the  United  States,  he 
will  have  to  pay  as  much  for  his  seamen  as  you  will 
have  to  pay  for  your  seamen,  and  all  the  discrimination 
against  the  American  shipowner  will  fall  away. 

"But  it  will  go  further  than  that.  A  vessel  coming 
from  Europe  and  staying  in  New  York  three  days  will, 
in  order  to  secure  herself,  pay  about  the  New  York 
wages  from  the  European  port  from  which  she  goes. 
Who  is  hurt?  The  foreign  shipowner?  Yes.  Why  is 
he  hurt?  He  is  hurt  in  something  he  had  no  right  to. 
He  had  no  right  to  a  specific  privilege  over  the  Ameri- 
can shipowner  in  taking  cargoes  or  passengers  out  an 
American  port;  and  we  believe — and  our  belief  is 
based  on  years  of  experience — that  this  will  equalize 
the  cost  of  operation  and  will  do  a  little  more  than  that, 
because  the  foreign  shipowner  whose  ship  is  in  the 
United  States  has  his  ship  in  a  foreign  port,  while  the 
American  shipowner  has  his  ship  in  the  home  port,  and 
any  shipowner  will  tell  you  that  it  costs  more  to  do  it 
in  a  foreign  port  than  in  the  home  port  where  it  is 
under  his  own  supervision."  (Extract  from  the  testi- 
mony given  by  Mr.  Furuseth  in  Synopsis  of  Hearing 
before  the  Subcommittee  of  the  Committee  on  Com- 
merce of  the  United  States  Senate  relative  to  involun- 
tary servitude  imposed  on  seamen,  p.  5.) 

Speaking  at  the  same  hearing  in  opposition,  Mr. 
Robert  Dollar,  President  of  the  Dollar  Steamship  Co. 
of  San  Francisco,  said :  "  . . .  Gentlemen,  do  you  under- 
stand thoroughly  what  this  means  ?  It  means  that  any 
contract  that  a  sailor  may  make  in  a  foreign  country 
is  abrogated  when  he  comes  here.  It  is  a  provision  for 
a  breach  of  contract  by  any  sailor  coming  to  this  coun- 
try. .  .Representing  over  3,000  merchants  of  the  Cham- 
ber of  Commerce  of  San  Francisco,  who  are  not  in- 
terested in  shipping,  I  protest  against  the  passage  of 


266  INTERNATIONAL   POLICE 

this  clause.  Outside  of  the  trouble  of  changing  some 
21  treaties,  causing  ill  feeling  between  foreign  nations 
and  ourselves,  it  will  seriously  affect  the  carrying  of 
our  products  by  materially  increasing  the  rate  of 
freight  and  causing  the  dear  American  public  to  foot 
the  bill,  as  we  will  have  to  depend  on  foreign  ships  to 
move  our  products  in  the  foreign  trade  for  many  years 
to  come."  (Ibid,  p.  5-6.) 

It  was  formerly  recognized  by  all  of  the  nations  that 
they  were  obligated,  even  in  the  absence  of  treaty 
stipulations,  to  cooperate  for  the  arrest  and  detention 
of  deserting  seamen.  During  the  Revolutionary  Wars, 
when  Great  Britain  was  engaged  in  conflict  with 
France,  there  was  much  friction  between  the  United 
States  and  Great  Britain  because  of  the  refuge  which 
their  deserting  seamen  found  in  our  ports.  The  United 
States  contended  that  in  the  absence  of  a  treaty  they 
were  not  bound  to  deliver  over  the  deserters.15 

The  practical  importance  of  the  view  expressed  by 
the  United  States  was  lessened  by  the  numerous  trea- 
ties in  which  the  obligation  to  deliver  deserting  sea- 
men was  included,  but  the  enforcement  of  the  Act  of 
March  4, 1915,  will  put  an  end  henceforth  to  the  cooper- 
ation of  the  United  States  in  this  matter,  since  it  di- 
rects the  President  to  abrogate  conflicting  articles  of 
treaties  (see  §  16  above.)16  It  would,  however,  appear 
that  President  Wilson  did  not  comply  with  the  pro- 
visions of  the  Act  relative  to  the  abrogation  of  the 
articles  of  the  treaties  in  question." 

15See  Moore's  Digest,  vol.  IV,  §  622,  p.  417f. 

"Congress,  by  the  Act  of  December  2, 1898,  repealed  the  law 
that  authorized  the  arrest  of  deserters  from  vessels  of  the 
United  States  in  the  ports  of  the  country.  (Moore's  Digest, 
vol.  II,  p.  418.) 

17It  has  been  stated  that  President  Wilson's  objection  was 
based  upon  the  ground  that  it  was  not  competent  for  Congress 
to  advise  the  executive  to  give  notice  of  the  abrogation  of 
separate  articles  of  a  treaty. 


FOREIGN  COMMERCE  267 

As  indicated  by  the  testimony  of  Mr.  Andrew  Furus- 
eth,  President  of  the  organization  which  was  most  in- 
fluential in  securing  the  adoption  of  this  legislation, 
one  of  the  purposes  of  the  application  of  Section  16  of 
the  Act  to  foreign  vessels  is  to  force  the  payment  to 
foreign  seamen  of  a  scale  of  wages  sufficiently  high  to 
prevent  them  from  deserting  when  they  reach  the  ports 
of  the  United  States.18 

It  is  a  question  open  to  serious  doubt  whether  the 
United  States  has  a  right  to  use  its  sovereign  power 
for  such  a  purpose.  It  must,  however,  be  borne  in  mind 
that  this  section  of  the  Act  has  the  declared  purpose  of 

18In  an  interview  which  I  had  Mr.  Andrew  Furuseth, 
relative  to  the  purpose  of  this  legislation  which  he  had  been  so 
instrumental  in  securing,  the  President  of  the  American  Sea- 
men's Union  repudiated  absolutely  any  belief  in  the  right  of 
a  state  under  international  law  to  intervene  in  the  affairs  of 
another.  It  was  his  opinion,  based  evidently  upon  a  wide 
reading  and  study  of  the  authorities,  that  every  state  has 
within  its  own  jurisdiction,  including  therein  its  ports  and 
harbors,  the  right  by  virtue  of  its  sovereignty  to  impose  what- 
ever regulations  it  may  judge  best,  except  in  so  far  as  this 
liberty  of  action  may  have  been  restricted  by  treaties.  This 
was  the  opinion  expressed  by  Chief  Justice  Marshall  in  the 
case  of  The  Exchange  (7  Cranch,  136) ,  in  which  he  said : 

' '  The  jurisdiction  of  the  nation  is  necessarily  exclusive  and 
absolute.  It  is  susceptible  of  no  limitation  not  imposed  by 
itself.  Any  restriction  upon  it,  deriving  validity  from  an 
external  source,  would  imply  a  diminution  of  its  sovereignty 
to  the  extent  of  the  restriction  and  an  investment  of  that  sov- 
ereignty to  the  same  extent  in  that  power  which  could  impose 
such  restriction.  All  exceptions,  therefore,  to  the  full  and 
complete  power  of  a  nation  within  its  own  territories  must  be 
traced  up  to  the  consent  of  the  nation  itself.  They  can  flow 
from  no  other  legitimate  source. ' '  ( Quoted  in  Moore 's  Digest 
of  International  Law,  vol.  II,  p.  308.) 

Nevertheless,  I  have  no  doubt  that  humanitarian  interven- 
tion will  later  be  appealed  to  by  organizations  similar  to  the 
Seamen's  Union  when  they  perceive  that  the  doctrine  that 
every  state  may  do  what  it  chooses  in  its  own  territory  can 
no  longer  be  maintained.  The  theory  of  absolute  sovereignty 


268  INTERNATIONAL   POLICE 

putting  an  end,  within  American  jurisdiction,  to  the 
arrest  of  deserting  seamen.  If  it  be  established  that 
the  detention  and  arrest  of  deserting  seamen  is  no 
longer  in  accord  with  the  prevalent  sentiments  of  hu- 
manity, upon  this  basis,  the  United  States  would  find 
a  justification  for  refusing  its  cooperation.  In  such 
an  instance  as  this,  where  the  United  States  is  called 
upon  to  arrest  individuals  and  to  deliver  them  by  force 
over  to  their  foreign  employers,  there  can  be  little 
doubt  that  the  opinion  of  the  United  States  itself  in 
regard  to  the  reasonableness  of  the  use  it  has  made  of 
its  sovereign  power  should  be  presumed  to  be  correct. 
Nevertheless,  it  is  evident  that  this  refusal  of  cooper- 
ation will  have  a  serious  effect  upon  any  foreign  vessel 
which  touches,  even  occasionally,  at  an  American  port, 
and  that  the  foreign  nations  might  have  some  cause  for 
protest  on  the  ground  that  it  constituted  a  departure 
from  the  ancient  and  generally  recognized  procedure 
of  all  states.19 


is  refuted  by  the  statement  of  Mr.  Root,  in  the  Proceedings 
of  the  American  Society  of  International  Law  of  April  27, 
1918,  p.  18-19.  Cf.  also  discussion  above  under  §  7  and  below 
under  §  9.  Some  other  indications  of  this  principle  of  the 
limitation  which  international  law  places  upon  sovereignty  in 
this  matter  of  the  jurisdiction  over  shipping  will  be  found  in 
Moore's  Digest  of  International  Law,  vol.  II,  p.  273,  274,  277, 
287,  290,  295,  353-4.  The  exemption  from  the  local  law  of 
vessels  that  are  driven  into  foreign  ports  by  distress  is  another 
limitation  which  international  law  places  upon  the  absolute 
control  of  the  sovereign.  (See  Moore's  Digest,  vol.  II,  §  208, 
p.  339f.) 

19It  may  be  argued  that  the  extradition  and  delivery  of  sea- 
men is,  in  the  United  States,  based  upon  treaty  stipulations, 
but  even  so,  the  generally  recognized  obligation  of  cooperation 
for  the  delivery  of  deserting  seamen,  and  the  difficulties  which 
a  refusal  of  this  cooperation  will  cause,  might  be  said  to  lay 
upon  the  United  States  the  obligation  to  fulfil  this  duty  by 
negotiating  treaties  containing  the  appropriate  provisions. 


FOEEIGN  COMMERCE  269 

Dana,  in  a  note  to  Wheaton,  defines  with  precision 
the  limitation  which  international  law  places  upon  the 
exercise  of  jurisdiction  over  foreign  merchant  vessels. 
He  says:  ''The  state  of  international  law  on  the  sub- 
ject of  private  vessels  in  foreign  ports. .  .may  be  said 
to  be  this :  So  far  as  regards  acts  done  at  sea  before 
her  arrival  in  port,  and  acts  done  on  board  in  port,  by 
members  of  the  crew  to  one  another,  and  so  far  as  re- 
gards the  general  regulation  of  the  rights  and  duties 
of  those  belonging  on  board,  the  vessel  is  exempt  from 
local  jurisdiction;  but,  if  the  acts  done  on  board  af- 
fect the  peace  of  the  country  in  whose  port  she  lies,  or 
the  persons  or  property  of  its  subjects,  to  that  extent 
that  state  has  jurisdiction.  The  local  authorities  have 
a  right  to  visit  all  such  vessels,  to  ascertain  the  nature 
of  any  alleged  occurrence  on  board.  Of  course,  no 
exemption  is  ever  claimed  for  injuries  done  by  the  ves- 
sel to  property  or  persons  in  port,  or  for  acts  of  her 
company  not  done  on  board  the  vessel,  or  for  their  per- 
sonal contracts  or  civil  obligations  or  duties  relating 
to  persons  not  of  the  ship's  company.20  (Richard  H. 
Dana's  edition  of  Wheaton,  §  95,  note  58;  quoted  in 
Moore's  Digest  of  International  Law,  vol.  II,  p.  297-8.) 


20The  provisions  of  the  Act  of  June  26,  1884,  which  pro- 
hibited the  prepayment  of  seamen  hired  in  American  ports 
was  applied  to  foreign  vessels.  This  was  evidently  a  proper 
matter  for  the  local  authority  to  regulate,  and  did  not  control 
the  foreign  vessel  when  without  the  port  and  jurisdiction  of 
the  United  States.  (See  Moore's  Digest  of  International  Law, 
vol.  II,  p.  307-310.) 

In  the  case  of  the  Strathearn  Steamship  Company,  Limited, 
v.  Dillon,  (252  U.  S. ;  printed  in  American  Journal  of  Inter- 
national Law,  July,  1921),  the  Supreme  Court  of  the  United 
States  upheld  the  constitutionality  of  section  4  of  the  Seamen 's 
Act  of  March  4,  1915.  Mr.  Justice  Day,  speaking  for  the 
court,  said  in  the  course  of  his  opinion  delivered  March  29, 
1920:  "Upon  the  authority  of  that  case  [Patterson  v.  Bark 
Eudora,  190  U.  S.  169],  and  others  cited  in  the  opinion  therein, 


270  INTERNATIONAL   POLICE 

DENIAL  OF  TRANSIT 

From  the  New  York  Times  of  July  7, 1921,  we  quote 
the  following  Washington  dispatch: 

"Despite  diplomatic  protest,  Attorney  General 
Daugherty  has  upheld  the  ruling  of  his  predecessor 
that  alcoholic  liquors  cannot  be  transported  across  ter- 
ritory of  the  United  States  in  transit  from  one  foreign 
country  to  another.  The  opinion  was  sent  to  the  Cus- 
toms Division  of  the  Treasury  to-day,  and  a  conference 
of  custom  officials  was  held  to  determine  methods  of 
enforcing  it. 

"Protests  against  this  interpretation  of  the  prohi- 
bition amendment  and  enforcement  law  were  filed  some 
months  ago  by  the  British  Embassy  in  behalf  of  Cana- 
dian citizens  and  by  the  Italian  Embassy  after  At- 
torney General  Palmer  had  rendered  an  opinion  on 
February  4th  that  such  transit  of  liquor  was  unlawful. 
In  view  of  the  diplomatic  representations  following  the 
change  of  Administration,  the  case  was  reopened  and 
hearings  held  at  the  Department  of  Justice. 

"Considerable  study  of  customs  regulations  and 
practices  will  be  entailed  by  the  decision,  it  was  said, 
since  other  commodities  moving  through  the  same 
traffic  lanes  are  not  objectionable  [unobjectionable] 
under  the  laws  of  the  United  States." 

An  examination  of  the  opinion  of  February  4,  1921, 
above  referred  to  will  show  that  the  acting  Attorney 
General  did  not  consider  the  question  of  in  how  far  it 
was  the  intention  and  the  right  of  Congress  to  deny 
transit  to  certain  articles.  The  text  of  the  opinion  as 


we  have  no  doubt  as  to  the  authority  of  Congress  to  pass  a 
statute  of  this  sort,  applicable  to  foreign  vessels  in  our  ports 
and  controlling  the  employment  and  payment  of  seamen  as  a 
condition  of  the  right  of  such  foreign  vessels  to  enter  and 
use  the  ports  of  the  United  States." 


FOREIGN  COMMERCE  271 

communicated  by  Acting  Attorney  General  Frank  K. 
Nebeker  to  the  Secretary  of  the  Treasury,  was  as  fol- 
lows: 

' '  Sir :  This  will  acknowledge  receipt  of  your  request 
for  an  opinion  as  to  whether  the  Eighteenth  Amend- 
ment to  the  Constitution  and  the  National  Prohibition 
Act  prohibit  or  affect  in  any  way  *  in  transit '  shipments 
of  liquor  for  beverage  purposes  touching  at  the  ports 
of  or  moving  through  the  United  States  when  originat- 
ing in  and  destined  to  foreign  countries  under  the  pro- 
visions of  section  3005  of  the  Revised  Statutes  as 
amended  by  the  Act  of  May  21, 1900  (31  Stat.  181). 

"Section  3005,  Revised  Statutes,  as  amended  is  as 
follows : 

"  'All  merchandise  arriving  at  any  port  of  the 
United  States  destined  for  any  foreign  country  may  be 
entered  at  the  custom-house,  and  conveyed,  in  transit, 
through  the  territory  of  the  United  States,  without  the 
payment  of  duties,  under  such  regulations  as  to  ex- 
amination and  transportation  as  the  Secretary  of  the 
Treasury  may  prescribe. ' 

"  Section  3  of  Title  II  of  the  National  Prohibition 
Act  (41  Stat.  308)  provides: 

"  'No  person  shall  on  or  after  the  date  when  the 
eighteenth  amendment  to  the  Constitution  of  the 
United  States  goes  into  effect,  manufacture,  sell,  bar- 
ter, transport,  import,  export,  deliver,  furnish  or  pos- 
sess any  intoxicating  liquor  except  as  authorized  in 
this  Act . . . ' 

"By  virtue  of  this  provision  any  and  all  dealings  in 
intoxicating  liquors  for  beverage  purposes  within  the 
jurisdiction  of  the  United  States  are  prohibited,  except 
in  so  far  as  authority  therefor  may  be  found  elsewhere 
in  the  Act.  Nowhere  therein  is  transportation  for  bev- 
erage purposes  authorized;  except  that  the  prohi- 
bitions of  section  20  of  Title  III  (41  Stat.  322),  which 


272  INTERNATIONAL   POLICE 

prohibits  the  importation  or  introduction  into  and  the 
manufacture,  sale,  transportation,  etc.,  within  the 
Canal  Zone,  are  made  inapplicable  to  liquor  in  transit 
through  the  Panama  Canal  or  on  the  Panama  Railroad. 
By  expressly  excepting  transportation  through  the 
Panama  Canal  and  on  the  Panama  Railroad  it  is  to  be 
assumed  that  Congress  intended  that  transportation 
elsewhere  should  be  prohibited. 

"By  virtue  of  section  33  of  Title  II  (41  Stat.  317), 
the  possession  of  liquor  for  beverage  purposes  is  per- 
mitted in  the  home,  provided  same  is  for  the  personal 
consumption  only  of  the  owner  thereof  and  his  family 
and  bona  fide  guests.  No  other  possession  for  bever- 
age purposes  being  authorized,  no  other  possession  is 
lawful. 

' '  In  the  absence  of  express  authorization,  in  order  to 
arrive  at  the  conclusion  that  liquor  for  beverage  pur- 
poses arriving  at  any  port  of  the  United  States  des- 
tined for  any  foreign  country  may  be  entered  at  the 
customhouse  and  conveyed,  in  transit,  through  the  ter- 
ritory of  the  United  States,  it  would  be  necessary  to 
hold  either  that  such  liquor  while  in  transit  is  neither 
possessed  nor  transported  within  the  United  States, 
or  that  the  Prohibition  Act  does  not  apply  to  liquor 
not  intended  for  beverage  consumption  within  the 
United  States.  Neither  of  these  positions  is  tenable. 
The  word  transport  as  used  in  the  Act  must  be  pre- 
sumed to  have  its  usual  meaning,  viz,  to  carry  or  to 
convey  from  one  place  to  another,  the  taking  up  of 
persons  or  property  at  some  point  and  putting  them 
down  at  another  (Gloucester  Ferry  Co.  v.  Pennsyl- 
vania, 114  U.  S.  196) ;  and  whether  the  possession  dur- 
ing transportation  be  in  the  carrier  (which  I  think  it 
is)  or  in  the  owner,  both  transportation  and  possession 
are  within  the  territory  of  the  United  States.  In  the 
second  place  the  Act  is  not  in  terms  limited  to  liquor 


FOBEIGN  COMMERCE  273 

intended  for  beverage  purposes  within  the  United 
States.  By  section  1  of  Title  II  (41  Stat.  307)  « liquor' 
and  'intoxicating  liquor'  are  defined  to  include  any 
liquors  containing  over  one-half  of  one  per  cent  of 
alcohol  by  volume  which  are  fit  for  beverage  purposes ; 
and  by  section  2  the  manufacture,  sale,  etc.,  of  such 
liquors  are  prohibited  except  as  authorized,  regardless 
of  the  place  where  they  are  intended  to  be  consumed. 
This  is  obvious  from  the  prohibition  upon  their  ex- 
portation. 

"  Having  arrived  at  the  conclusion  that  liquor  in 
transit  through  the  United  States  would  be  both  trans- 
ported and  possessed  in  violation  of  the  National  Pro- 
hibition Act,  it  is  not  necessary  for  the  purposes  of  this 
opinion  to  determine  whether  the  procedure  estab- 
lished by  section  3005,  Revised  Statutes,  would  involve 
either  prohibited  importation  or  exportation. 

1  'The  National  Prohibition  Act  applies  to  all  the 
territory  of  the  United  States  that  is  not  otherwise  ex- 
cepted  from  its  operation,  and  extends  to  all  waters 
within  its  territorial  limits,  including  a  marine  league 
from  the  shore ;  within  those  waters  the  manufacture, 
sale,  transportation,  possession,  etc.,  is  prohibited. 

"My  conclusion  therefore  is  that  the  provisions  of 
section  3005,  Revised  Statutes,  do  not  apply  to  intoxi- 
cating liquors  for  beverage  purposes,  and  that  the 
National  Prohibition  Act  prohibits  'in  transit'  ship- 
ments of  such  liquors  touching  at  the  ports  of  or  mov- 
ing through  the  United  States,  though  same  originate 
in  and  are  destined  to  foreign  countries."  (Opinions 
of  Attorneys  General,  Vol.  32,  p.  419-422.) 

PROHIBITION  OF  ENTRY 

In  the  cases  arising  from  the  enforcement  of  the 
Eighteenth  [Prohibition]  Amendment  upon  foreign 

18 


274  INTERNATIONAL   POLICE 

vessels  within  the  territorial  waters  of  the  United 
States,  prohibition  of  entry  has  been  interwoven  with 
the  matter  of  transit,  as  is  shown  by  the  following 
Washington  dispatch  printed  in  the  New  York  Times 
of  July  14,  1921: 

"Protests  against  enforcement  by  customs  officials 
of  a  section  of  the  Volstead  Prohibition  Enforcement 
act  which  subjects  to  seizure  foreign  vessels  coming 
within  the  three-mile  limit  with  liquor  aboard  are 
reaching  the  State  Department.  Inquiries  have  come 
also  from  various  embassies  and  legations,  which  in- 
dicate that  foreign  Governments  are  becoming  con- 
cerned at  threatened  interference  with  their  shipping. 

"It  is  pointed  out  that  a  British  ship  bound  from 
Halifax  to  Jamaica  could  not  put  into  any  American 
port  for  fuel  or  supplies  without  risk  of  seizure  if  she 
carried  spirits  in  her  cargo,  under  the  construction 
which  has  been  given  to  the  law  by  the  recent  decision 
of  Attorney  General  Daugherty,  affirming  an  opinion 
of  his  predecessor. 

"Furthermore  it  is  expected  by  the  shipping  inter- 
ests that  another  opinion,  withdrawing  the  present 
privilege  of  sealing  up  the  bar  supplies  on  the  ocean 
liners  within  the  three-mile  limit,  is  coming,  in  which 
case  these  vessels  also  would  be  subject  to  seizure  if 
they  carried  liquors  for  the  use  of  passengers. 

"Finding  that  the  State  Department  can  do  nothing 
in  the  matter,  shipping  representatives  are  now  direct- 
ing their  inquiries  to  the  Treasury  and  Department  of 
Justice.  It  is  understood  that  they  are  seeking  a  stay 
in  the  execution  of  the  new  orders  to  permit  a  test  case 
in  the  courts. ' m 


21  The  distinct  question  of  the  right  to  police  marginal  waters 
beyond  the  three-mile  limit  when  necessary  to  prevent  smug- 


FOREIGN  COMMERCE  275 

The  New  York  Times  of  August  5,  prints  a  special 
report  from  Washington  which  contains  the  following 
statement:  "It  was  learned  at  the  Department  of 
Justice  that  there,  is  an  understanding  among  the  Fed- 
eral District  Attorneys  in  coast  cities  that  there  will  be 
no  interference  with  liquor-carrying  ships  until  the  set 
case  brought  at  the  instance  of  the  Cunard  Line  has 
been  settled.  This  case  concerns  the  question  of  *  liquor 
in  transit,'  in  other  words  the  right  of  a  ship  to  touch 
at  an  American  port  if  her  bar  is  sealed  when  she 
enters  the  three-mile  limit.  The  Department  of  Jus- 
tice will  aid  the  expedition  of  this  suit  and  will  throw 
no  legal  obstacles  in  the  way  of  its  completion,  instead 
endeavoring  to  bring  it  to  a  conclusion  as  soon  as  pos- 
sible." 


gling  is  involved  in  the  recent  (Aug.  1,  1921),  seizure  of  the 
British  schooner,  the  Henry  L.  Marshall,  outside  the  three- 
mile  limit  in  the  vicinity  of  Atlantic  City. 

This  schooner,  according  to  the  account  in  the  New  York 
Times,  Aug  3, 1921,  made  a  practice  of  lying  outside  the  three- 
mile  limit  and  selling  liquor  to  purchasers  who  came  out  in 
motor  boats.  The  captain,  Eris  Anderson,  was  reported  as 
having  boasted  that  ' '  these  Federal  men  can 't  do  anything  to 
me  but  make  it  uncomfortable. ' '  Captain  Anderson  was  also 
quoted  "as  having  admitted  making  a  prior  trip  to  Montauk 
Point  with  a  cargo  of  liquor.  On  this  trip  he  had  2,000  cases 
of  liquor  he  was  said  to  have  sold  to  visitors. ' ' 

According  to  the  Times,  Assistant  United  States  District 
Attorney  Clark  said: 

"  It  is  our  position  that  we  have  a  right  to  seize  a  vessel  out- 
side of  the  three-mile  limit  if  there  is  evidence  of  a  conspiracy 
to  violate  our  customs  laws  and  the  Volstead  act.  While  the 
actual  sale  of  liquor  outside  of  the  three-mile  limit  is  not  in 
itself  illegal,  yet  if  it  can  be  shown  that  persons  from  this 
country  go  out  there  to  buy  contraband  then  conspiracy  has 
been  established. ' ' 

The  New  York  Times  of  August  5,  gives  further  particulars 
and  states  that  the  members  of  the  crew  of  the  Marshall  were 
held  in  $5,000  bail. 


276  INTERNATIONAL   POLICE 

The  prohibition  or  restriction,  upon  humanitarian 
grounds,  of  the  entry  of  goods,  is  alluded  to  by  Staple- 
ton,  who  writing  in  1866  complains  of  the  action  of  the 
British  Parliament: 

"By  the. Act  slave-grown  sugar  was  admitted  into 
English  markets  on  equal  terms  with  sugar  produced 
by  free  labor. 

' '  The  effect  of  this  has  been,  as  predicted  at  the  time, 
that  most  of  our  West  Indian  colonies  have  been 
ruined:  and,  as  was  strongly  pressed  by  the  late  Sir 
Robert  Peel  as  a  certain  result,  Cuba  and  other  slave- 
trading  States  have  carried  on  the  slave  trade  with 
previously  unexampled  vigor,  and  flourished  under  its 
operation."  (A.  G.  Stapleton:  Intervention,  1866,  p. 
265-6.) 

In  all  these  instances  in  which  the  state  has  made  use 
of  its  authority  to  exclude  or  to  regulate  foreign  com- 
merce for  the  purpose  of  enforcing  regulations  of  a 
humanitarian  nature,  there  is  evidently  danger  of  a 
serious  conflict  between  the  two  States. 

On  the  one  hand  the  local  authority  has  a  right  to 
insist  that  the  rights  of  aliens  and  foreign  commerce 
shall  not  be  unreasonably  used  within  its  jurisdiction 
to  thwart  or  prevent  the  enforcement  of  all  reasonable 
laws. 

But  on  the  other  hand  the  local  authorities  should 
not  impose  unreasonable  conditions  upon  aliens  or 
shipping  temporarily  within  its  jurisdiction. 

Where  it  is  merely  a  question  of  preventing  the  ad- 
vent of  foreigners  from  interfering  with  the  due  en- 
forcement of  the  local  law,  there  is  usually  little  diffi- 
culty in  reaching  some  reasonable  interpretation  or  ad- 
justment. But  when  the  object  of  the  territorial  sov- 
ereign is  to  make  use  of  transit  or  temporary  sojourn 
as  a  leverage  to  compel  foreigners  and  foreign  ship- 
ping to  modify  their  own  regulations,  the  act  ceases  to 


POLICE  REGULATION  277 

be  one  of  self-defense  and  sovereignty  and  becomes 
virtually  either  an  act  of  intervention  or  of  interfer- 
ence. 

Under  ordinary  circumstances  such  an  act  would  be 
an  interference  which  other  independent  states  would 
not  tolerate  and  it  would  be  corrected  by  recourse  to 
appropriate  measures  of  retaliation. 

When,  however,  the  purpose  is  humanitarian,  so  that 
the  act  in  question  may  be  defended  upon  the  ground 
that  it  is  necessary  for  the  protection  of  the  interests  of 
all  the  states  and  of  mankind  in  general,  the  practice  of 
states  shows  this  to  be  a  justification.  The  question  is 
however  new  and  the  limits  of  the  conflicting  rights 
have  not  as  yet  been  described. 

§  9.     INTERNATIONAL,  POLICE  REGULATION22 

The  powers  which  control  any  society  must  ever  be 
on  the  watch  to  protect  it  from  danger.  It  is  not  pos- 
sible to  define  exactly  beforehand  the  nature  of  the 


—The  various  kinds  of  action  which  are  in  the  nature  of 
international  police,  or  closely  related  to  it  may  be  classed  as 
follows : 

(1)  Action  undertaken  to  compel  the  observance  of  the  law 
of  nations.    It  is  in  this  sense  that  we  have  used  International 
Police  as  the  heading  of  this  chapter.     (For  the  use  of  police 
in  this  sense  see  Westlake :  Vol.  I,  p.  317.) 

(2)  Action  undertaken  to  prevent  the  violation  by  a  state 
of  the  law  when  such  an  occurrence  seems  likely,  especially 
when  the  penalties  imposed  after  the  commission  of  the  offense 
are  inadequate  to  protect  the  interests  of  society.     This  is 
really  an  extraordinary  procedure  for  the  enforcement  of  the 
law,  just  as  in  our  municipal  law  we  have  injunction  to  pre- 
vent the  violation  of  the  law  when  the  court  believes  that  the 
ordinary  remedial   processes  are  inadequate.     Hall    (Inter- 
national Law,  4th  ed.,  §  95,  p.  309  note)  calls  this  "preventive 
interference. ' ' 

(3)  "International   Police  Regulation,"  which  is  closely 
related  to  the  power  of  prevention  and  to  every  exercise  of  a 
police  power,  is  the  action  of  making  and  enforcing  regulations 


278  INTERNATIONAL   POLICE 

peril  which  may  arise.  In  international,  as  in  national 
affairs,  those  in  authority  must  be  allowed  to  exercise  a 
wide  discretion  over  life  and  property  when  they  be- 
lieve it  necessary  for  the  protection  of  the  common 
safety.  This  exercise  of  discretion  is  called  police 


necessary  to  prevent  future  violations.  The  publication  of 
such  regulations  gives  to  all  due  notice  and  thereby  tends  to 
reduce  the  inconvenience  and  arbitrary  character  of  the  force 
which  it  may  subsequently  be  necessary  to  employ. 

(4)  "Police  patrol"  or  "international  police  patrol"  is  the 
preventive  action  which  one  or  more  states  take  to  forestall 
and  effectively  to  punish  violations  of  international  law  by 
individuals.     Such,  for  example,  are  the  fisheries  police  of 
the  North  Sea   (see  Paul  S.  Reinsch:    Public  International 
Unions:   Ginn  and  Co.,  Boston,  1911,  p.  62)  ;   the  protection 
of  the  submarine  cables  (Ibid.,  p.  63)  ;    African  Slave  Trade 
and  Liquor  Traffic  (Ibid.,  p.  64) ;  the  repression  of  the  white 
slave  trade  (Ibid.,  p.  64)  ;  the  South  American  police  conven- 
tion (Ibid.,  p.  66). 

(5)  Action  for  the  purpose  of  restricting  the  exercise  by  a 
state  of  certain  of  the  rights  it  ordinarily  enjoys  when  such 
liberty  is  considered  dangerous  to  the  safety  of  all  the  states. 
This  last  is  perhaps  the  most  characteristic  form  of  the  ex- 
ercise of  police  power  and  is  the  action  in  international  rela- 
tions with  which  we  are  in  this  section  principally  concerned. 
When  necessary  to  the  safety  of  all  the  states,  the  exercise  of 
police  power  justifies  the  curtailment  or  even  denial  of  any  of 
the  rights  of  a  state  and  its  citizens,  and  in  theory  would  go 
even  to  the  limit  of  justifying  the  annihilation  of  a  community, 
if  such  extreme  action  could  be  shown  to  be  the  only  means  to 
preserve  international  society.     The  exercise  of  this  police 
power  is  in  practice  very  closely  associated  with  the  ordinance 
power  above  referred  to  as  police  regulation,  and  for  this  rea- 
son we  employ  the  more  usual  term  of  International  Police 
Regulation  for  our  section  heading  instead  of  International 
Police  Restriction. 

In  our  municipal  [national]  law,  "police"  is  often  used  to 
designate  the  minor  matters  which  are  left  to  lesser,  i.  e., 
"police  officials."  In  this  sense,  we  have  "police  ordinances" 
and  "powers  of  police."  But  even  in  this  field,  we  perceive 
the  essential  or  underlying  idea  of  a  power  which  cannot  be 
completely  regulated  and  provided  for  in  advance  by  the  su- 
perior authorities. 


POLICE  REGULATION  279 

power  and  justifies  any  curtailment  of  the  rights  which 
are  ordinarily  enjoyed  by  the  separate  states,  provided 
the  action  to  be  taken  seems  reasonably  necessary  for 
the  protection  of  the  common  safety.  The  determi- 
nation of  what  is  necessary  is  perforce  left  to  the  de- 
cision of  those  in  authority.  In  international  affairs 
this  means  that  the  decision  must  be  left  to  those 
powers  who  exercise  a  paramount  direction  over  world 
affairs, — that  is,  to  the  great  world  powers.  Some- 
times they  act  in  concert.  Each  of  the  world  powers 
also  has  a  particular  region  outside  of  Europe  where 
it  often  exercises  this  police  power  as  if  by  a  tacit  man- 
date from  the  other  powers.22* 

The  aim  of  the  political  system  of  the  nations  is  well 
expressed  in  Senator  Fessenden's  definition,  intended, 
it  is  true,  to  apply  only  to  the  United  States  (Life  of 
Fessenden,  Vol.  I,  p.  52) :  "The  great  principle  of  their 
political  system,"  he  said,  "was  the  largest  liberty  of 
thought  and  the  greatest  freedom  of  individual  action 
consistent  with  social  order." 

Although  we  define  police  action  as  a  justifiable  cur- 
tailment of  rights,  we  might  in  almost  all  the  instances 
in  which  it  is  applied  consider  it  rather  as  the  preven- 
tion of  that  abusive  use  of  a  recognized  right  which  by 
reason  of  the  abuse  thereof  becomes  unlawful. 

Westlake,  denying  that  the  right  of  sovereignty  per- 
mits a  belligerent  to  lay  even  in  his  own  territorial 
waters  floating  mines  which  do  not  become  innocuous 
as  soon  as  they  get  loose,  remarks  that  "...  the  right 
of  a  state  in  the  waters  subject  to  its  sovereignty  can 
certainly  not  rank  higher  than  that  of  a  private  owner 
in  the  land  or  water  which  is  his  property,"  and  he 

22aThe  executive  action  of  the  great  powers  in  concert  or 
acting  separately  within  a  particular  region  or  sphere  of  in- 
fluence is  more  fully  discussed  in  the  following  section.  (§  10). 


280  INTERNATIONAL   POLICE 

adds,  "But  no  principle  is  more  firmly  established  in 
the  science  of  law  than  that  which  says  to  an  owner 
sic  utere  tuo  ut  alienum  non  laedas  [so  use  thine  own 
as  not  to  injure  another]."  (International  Law,  Vol. 
II,  p.  313.) 

Phillimore  begins  his  chapter  on  Intervention  with 
the  following  observation :  "In  all  systems  of  private 
jurisprudence,  provision  is  made  for  the  placing  upon 
the  abstract  right  of  individual  property  such  restrict- 
ions as  the  general  safety  may  require.  The  maxim, 
1  expedit  enim  reipublicae,  ne  quis  sua  re  male  utatur,2* 
belongs  to  the  law  of  all  countries  (Inst.  I,  VIII,  2). 
The  Praetorian  Interdict  of  the  Roman,  the  Injunction 
of  the  English  Law,  give  effect  to  this  principle  by 
preventing  the  mischief  from  being  done,  instead  of 
endeavoring  to  remedy  it  when  done.  Some  analagous 
right  or  power  must  exist  in  the  system  of  Interna- 
tional Jurisprudence."  (Phillimore,  1  ed.,  Vol.  1, 1854, 
§§  386-7,  p.  433.) 

A  good  illustration  of  this  preventive  action  was  the 
exclusion  of  the  Bonapartes  from  the  throne  of  France. 
(Angeberg:  Congres  de  Vienne,  II,  p.  1183-4.  Cf. 
Westlake :  International  Law,  vol.  I,  p.  318 ;  Stapleton : 
Intervention,  p.  139.) 

In  his  notes  to  the  passage  just  quoted,  Phillimore 
gives  references  to  the  "Digest"  of  the  instances 
where  property  is  subjected  to  restriction  on  account 
of  the  general  good.  He  also  gives  a  quotation  from 
Ahrens  (Cours  de  Droit  naturel  ou  de  Philosophic  du 
Droit,  Brussels,  1844,  p.  296),  which  when  translated 

2SThe  English  translation  is :  "  And  this  decision  is  just,  as 
the  welfare  of  the  State  demands  that  no  one  should  make  a 
bad  use  of  his  own."  (Institutions  of  Gaius  and  Justinian, 
translated  by  T.  Lambert  Means,  London,  1882,  p.  269.) 

Cf.  works  of  Edmund  Burke,  Boston,  Little,  Brown  and  Co., 
1894,  Vol.  5,  p.  321-322,  Letters  on  a  Regicide  Peace,  Letter  I. 
See  also  Hall :  International  Law,  4th  ed.,  §  95,  p.  309  note. 


POLICE  REGULATION  281 

reads :  *  *  Every  right  has  its  limits :  it  is  limited  by  the 
corresponding  rights  of  all  the  members  of  a  so- 
ciety. "23a 

23alt  is  the  purpose  of  intervention  to  vindicate  the  rights 
of  the  other  states  when  any  state  takes  advantage  of  its  in- 
dependence to  use  its  rights  in  an  abusive  manner,  that  is  with- 
out regard  to  the  interests  of  its  neighbors.  The  situation 
when  the  abusive  action  endangers  a  particular  state  is  dis- 
cussed below  under  §  16,  Self -Preservation.  We  are  here  con- 
cerned only  with  abuses  which  injuriously  affect  all  of  the 
states.  Grotius  shows  in  many  of  the  passages  we  quote  in 
this  section  and  elsewhere  (see  §  7)  that  he  always  placed  the 
rights  and  interests  of  international  society  above  those  of 
states  considered  separately. 

The  judicious  Hooker  writing  about  1592  set  forth  in  a 
remarkable  passage  the  supremacy  of  international  law : 

"Now,  besides  that  law  which  simply  concerneth  men,  as 
men,  and  that  which  belongeth  unto  them  as  they  are  linked 
with  others  in  some  sort  of  Politique  Society,  there  is  a  third 
kinde  of  law  which  toucheth  all  such  several  bodies  Politique, 
so  far  forth  as  one  of  them  hath  publique  commerce  with  an- 
other. And  this  third  is  the  Law  of  Nations ....  The  strength 
and  vertue  of  that  law  is  such,  that  no  particular  nation  can 
lawfully  prejudice  the  same  by  any  their  several  laws  and 
ordinances,  more  than  a  man  by  his  private  resolutions  the 
law  of  the  whole  Commonwealth  or  State  wherein  he  liveth. 
For  as  civil  law,  being  the  act  of  the  whole  body  Politique, 
doth  therefore  over-rule  each  several  part  of  the  same  body; 
so  there  is  no  reason  that  any  one  Commonwealth  of  itself 
should,  to  the  prejudice  of  another,  annihilate  that  whereupon 
the  whole  world  hath  agreed."  (Eccl.  Policy,  1,  10,  as  quoted 
by  Professor  J.  S.  Reeves  in  American  Journal  of  International 
Law,  July,  1921,  Vol.  15,  p.  365.) 

Giinther,  one  of  the  founders  of  the  positive  system  of  inter- 
national law,  writes:  "The  closer  union  in  which  the  Euro- 
pean nations  stand  today,  for  they  may  certainly  be  considered 
as  members  of  a  great  and  equal  society — especially  in  matters 
which  concern  the  common  interests — makes  it  necessary  in 
accordance  with  the  fundamental  principles  of  international 
law  (Freinnlligen  Volkerrecht)  that  each  nation  in  its  con- 
duct observe  its  obligation  to  international  society  and  refrain 
from  using  the  liberty  it  enjoys  therein  in  such  a  manner  as 
obviously  to  disturb  the  peace  and  security  of  this  great  so- 
ciety, or  to  give  the  other  members  any  reasonable  ground  for 


282  INTERNATIONAL   POLICE 

But  there  are,  as  we  have  said,  instances  where  po- 
lice action  is  necessary,  irrespective  of  any  abuse  of  a 
right.  In  our  municipal  law,  the  fire  marshal  may 
dynamite  any  house  when  in  his  opinion  it  is  necessary 
to  save  the  city.24 

mistrust  or  apprehension."     (Giinther:    Volkerrecht  Vol.  I, 
1787,  p.  282;  cf.  ibid,  p.  295-6.) 

When  two  or  more  nations  engaged  in  war  violate  the  fun- 
damental rules  recognized  by  international  law  as  governing 
the  conduct  of  hostilities,  there  is,  as  we  have  seen  above  (§7), 
a  just  ground  for  intervention  to  vindicate  the  law  of  nations. 
And  again,  when  the  manner  of  conducting  a  civil  war  is  so 
barbarous  as  to  shock  neighboring  nations  and  to  serve  as  a 
reproach  to  civilization,  third  states  have,  as  we  have  also  seen 
(§  8,  c,),  a  right  of  intervention  upon  the  ground  of  humanity. 
There  is,  however,  still  another  ground  of  action,  namely: 
when  an  unnecessary  war  between  two  independent  states  or 
a  civil  war  unreasonably  prolonged  threatens  the  peace  and 
security  of  international  society,  such  conduct  on  the  part  of 
the  warring  states  may  rightfully  be  regarded  as  an  instance 
of  the  abusive  use  of  their  liberty  and  their  sovereignty.  In 
accordance  with  the  practice  of  states,  the  danger  which  such 
an  abusive  action  causes  to  the  security  of  states  is  sufficient 
justification  for  intervention. 

Karl  Heller  (Die  Frage  der  Zulassigkeit  der  Volkerrecht- 
lichen  Intervention,  1915,  p.  6)  says  that  Glafey  is  the  first  to 
observe  that  "when  the  warring  parties  welter  in  blood  with- 
out end  a  third  may  intervene  with  arms  and  attempt  to  im- 
pose peace  by  force."  (Ad.  F.  Glafey:  Recht  der  Vernunft, 
1739,  Bk.  6,  Chap.  I,  p.  97.) 

Professor  Kebedgy  recognizes  the  justification  of  such  inter- 
vention to  prevent  any  state  from  using  its  sovereignty  in  a 
manner  so  abusive  as  to  endanger  the  security  of  the  other 
states.  Quoting  Professor  Arntz'  letter  to  Rolin  Jaequemyns 
(revue  de  droit  international  et  de  legislation  comparee,  Vol. 
8,  1876,  p.  674)  he  gives  as  an  illustration  the  case  of  a  state 
which  possessed  of  the  monopoly  of  a  sovereign  remedy  against 
a  widespread  malady  should  refuse  to  allow  the  drug  to  be 
exported  for  the  benefit  of  other  nations  (Kebedgy:  Inter- 
vention, p.  86). 

24The  action  of  the  powers  to  compel  Holland  to  desist,  when 
she  was  at  the  point  of  subjugating  the  revolting  Belgian 
Provinces,  was  a  curtailment  of  the  sovereign  right  of  the 


POLICE  REGULATION  283 

President  Angell,  in  his  Phi  Beta  Kappa  address, 
asks :  *  *  May  not  the  great  powers,  if  they  see  a  small 

Netherlands  to  settle  its  own  internal  affairs.  Assuredly  there 
never  was  a  greater  abuse  of  force  than  that  employed  by 
France  and  England  to  compel  the  Dutch  to  submit  unless  the 
coercive  measures  were  justified  by  the  superior  needs  of  Euro- 
pean peace.  The  moment  was  a  critical  one  and  the  interven- 
tion was  successful  in  preserving  Europe  from  another  general 
war  which  was  seriously  threatened.  Upon  this  ground  the  ac- 
tion of  the  European  concert  has  generally  been  justified  (see 
Pitt  Cobbett :  Cases  on  International  Law,  3  ed.,  Vol.  I,  p.  347- 
8 ;  cf .  Rossi  's  remarkable  analysis  of  the  principles  applicable 
to  this  instance  in  Archives  de  droit  et  de  legislation,  Brussels, 
Vol.  1, 1837,  p.  369-70) .  In  the  protocol  of  February  19, 1831, 
the  great  powers  assembled  in  conference  at  London,  formu- 
lated the  principle  which  was  the  justification  of  their  united 
action :  ' '  Every  nation ' '  declares  the  protocol  ' '  has  its  sepa- 
rate rights,  but  Europe  also  has  rights  given  her  for  the  main- 
tenance of  the  peace  and  order  of  society."  (Translated  from 
LeClerq:  Traites  de  la  France,  Vol.  4,  p.  15.  The  French 
original  reads:  "Chaque  nation  a  ses  droits  particuliers ; 
mais  1'Europe  aussi  a  son  droit;  cest  1'ordre  social  qui  le 
lui  a  donne.") 

Professor  J.  B.  Moore  gives  the  following  brief  account  pf 
the  protest  of  Great  Britain  and  France  at  the  blocking  of 
Charleston  harbor.  Although  Secretary  Seward  wrote  Minis- 
ter Dayton:  "In  making  these  explanations,  I  must  not  be 
understood  as  conceding  to  foreign  states  a  right  to  demand 
them"  (Diplomatic  Correspondence,  1862,  p.  316),  it  might 
be  considered  that  by  making  explanations  he  did,  in  fact,  to 
some  extent  at  least,  concede  the  right.  Professor  Moore 
writes : 

' '  February  14,  1862,  Lord  Stanhope,  in  the  House  of  Lords, 
called  attention  to  the  report  that  a  second  squadron  of  ships 
laden  with  stone  was  about  to  be  sunk  by  the  United  States 
in  Maflfit's  channel  at  Charlestown,  South  Carolina.  He  ob- 
served that  the  sinking  of  large  ships  laden  with  stone  on 
banks  of  mud  at  the  entrance  of  a  harbor  could  only  end  in 
its  permanent  destruction  and  was  not  justified  by  the  laws 
of  war,  and  declared  that  the  British  Government  was  well 
entitled  to  protest  against  the  act.  Earl  Russell  replied  that 
he  considered  the  destruction  of  commercial  harbors  a  most 
barbarous  act,  that  the  French  Government  took  the  same 
view,  and  that  they  had  decided  to  remonstrate  with  the  Gov- 
ernment of  the  United  States.  On  February  28,  Earl  Russell 


284  INTERNATIONAL   POLICE 

power  pursuing  a  policy  dangerous  to  the  general 
peace  of  all  or  of  several,  justly  intervene  to  prevent  it, 

stated  that  he  had  received  a  dispatch  from  Lord  Lyons  to 
the  effect  that  Mr.  Seward  had  stated  that  there  had  not  been 
a  complete  filling  up  of  Charleston  Harbor  and  that  no  more 
stones  would  be  sunk  there. 

"The  subject  had  been  discussed  between  Mr.  Seward  and 
Lord  Lyons,  and  Mr.  Seward  had  made  explanations  to  the 
effect  that  artificial  obstructions  in  the  channels  of  rivers 
leading  to  ports  had  been  regarded  as  an  ordinary  military 
appliance  of  war;  thatj  it  was  not  conceived  that  such  ob- 
structions could  not  be  removed ;  and,  that,  upon  the  termina- 
tion of  the  war,  there  would  be  cast  upon  the  Government  the 
responsibility  of  improving  the  harbors  of  all  the  States.  After 
these  explanations  were  given,  Mr.  Seward  ascertained  and 
stated  that  between  the  channels  at  Charleston  which  had  been 
obstructed  there  still  remained  two — the  Swash  channel  and 
a  part  of  Maffit  's  channel — neither  of  which  had  been  nor  was 
intended  to  be  artificially  obstructed  and  which  were  to  be 
guarded  by  the  blockading  naval  forces.  Mr.  Seward  ob- 
served that,  in  making  these  explanations  he  was  not  to  be 
understood  as  conceding  to  foreign  states  a  right  to  demand 
them.  They  were  accepted  by  the  French,  as  well  as  bv  the 
British  Government."  (Moore's  Digest  of  International  Law, 
Vol.  7,  p.  855-6,  §  1286,  Professor  Moore  gives  references  to 
authorities  and  to  other  instances  in  which  the  question  of  the 
right  to  obstruct  channels  has  arisen.) 

For  the  discussion  of  the  justification  of  intervention  to 
preserve  the  Balance  of  Power  on  the  ground  of  the  right 
of  the  society  of  states  to  curtail  the  rights  of  the  separate 
states  for  the  preservation  of  peace,  see  discussion  in  §  17; 
cf .  also  Giinther :  Volkerrecht,  Vol.  I,  p.  333,  358,  359-60 ;  cf . 
ibid  p.  298 ;  Gentz,  Fragmente  aus  der  neusten  Geschichte  des 
Politischen  Gleichgewicht  in  Europa.  St.  Petersburg,  1806. 

Kamptz  in  his  partisan  effort  to  sustain  the  right  of  the 
Holy  Alliance  to  interfere  in  the  internal  affairs  of  the  states 
of  Europe  for  the  purpose  of  preventing  constitutional  changes 
by  means  of  a  revolution  takes  the  ground  that  they  have  the 
right  to  prevent  changes  which  endanger  "the  peace  and  se- 
curity of  the  community  of  European  states  or  the  well  recog- 
nized rights  of  other  states"  (Volkerrechtlicher  Erorterung 
des  Rechts  der  Europaischen  Machte  in  die  Verfassung  eines 
Einzelnen  Staats  sich  zu  mischen,  Preface  p.  VII).  A  little 
further  along  he  declares  such  action  to  be  "as  necessary  and 
beneficial  for  the  great  community  of  states  as  is  police  in  each 
separate  state"  (Ibid  p.  VIII-IX). 


POLICE  REGULATION  285 

as  any  government  checks  the  violence  of  one  of  its  own 
citizens  ? ' ' 

It  is  evident  that  a  power  so  vast  is  in  danger  of 
being  abused.  If  it  is  unwisely  used  to  interfere  un- 
necessarily with  the  independence  of  the  less  powerful 
sovereign  states,  it  will  constitute  a  menace  to  society 
no  less  serious  than  that  which  it  is  intended  to  ward 
off. 

With  a  view  to  preventing  abuse,  it  has  been  pro- 
posed to  restrict  the  exercise  of  this  power  to  col- 
lective action,  but  just  as  in  the  case  of  humanitarian 
intervention  the  suggestion  is  full  of  difficulties,  such  as 
the  delay  inevitable  in  organizing  any  collective  action. 
Furthermore  the  tendency  of  states  to  roll  off  the  bur- 
den of  police  action  upon  the  state  whose  security  is 
more  directly  threatened  cannot  easily  be  overcome. 
The  state  immediately  threatened  cannot  delay  action 
indefinitely,  and  other  states  sometimes  affect  indif- 
ference, feeling  secure  in  the  knowledge  that  their  in- 
terests will  be  protected  by  the  state  most  directly  con- 
cerned. 

Hall  (4th  ed.,  §  95,  p.  308)  intertwines  his  discussion 
of  international  police  with  humanitarian  intervention, 
but  he  selects  for  favorable  comment  two  instances  of 
international  police  carried  out  by  collective  action: 
the  formation  of  Belgium  (1833),  and  the  arrange- 
ments adopted  by  the  Congress  of  Berlin  (1878). 
"Still,"  he  concludes,  "from  the  point  of  view  of  law, 
it  is  always  to  be  remembered  that  states  so  interven- 
ing are  going  beyond  their  legal  powers.  Their  excuse 
or  their  justification  can  only  be  a  moral  one. ' '  Presi- 
dent Angell  (Phi  Beta  Kappa  address  on  the  European 

The  erroneous  conclusions  which  Kamptz  draws  and  the 
abusive  application  of  this  principle  by  the  Holy  Alliance  in 
no  way  affects  the  correctness  of  the  principle.  It  does,  how- 
ever, indicate  the  danger  of  abuse  which  is  inherent  in  it. 


286  INTERNATIONAL   POLICE 

Concert,  p.  9),  has  drawn  attention  to  the  error  into 
which  Hall  falls.  After  repeating  the  extract  given 
above,  Dr.  Angell  observes:  "I  venture  to  ask  in  re- 
spect to  the  last  two  sentences  I  have  quoted  from  Mr. 
Hall  whether,  if  the  acts  of  intervention  under  con- 
sideration in  any  given  case  have  an  excuse  or  justifi- 
cation which  is  a  moral  one,  the  states  performing  them 
can  be  going  beyond  their  legal  powers,  provided  by 
the  phrase  *  legal  powers'  we  mean  powers  allowable 
under  international  law.  For  how  do  we  determine 
what  powers  are  thus  allowable  except  by  finding  the 
moral  sense  of  nations  as  expressed  in  their  usages! 
and  the  moral  sense  of  Europe  appears  plainly  to  be 
that  the  great  powers  may  infringe  upon  the  inde- 
pendence and  equality  of  the  minor  states,  if  such  in- 
fringement is  essential  to  the  preservation  of  the  gen- 
eral good.  If  such  infringement  is  justifiable  on  moral 
grounds,  is  it  not  by  that  fact  to  be  regarded  as  justi- 
fiable in  international  law  I'"5 

It  is  a  matter  for  regret  that  the  writers  on  inter- 
national law  have  not  examined  International  Police 
Action  with  the  care  the  importance  of  the  subject  war- 
rants. 

The  most  frequent  application  of  "international 
police ' '  is  intervention  to  prevent  an  unnecessary  war 
or  to  bring  a  conflict  to  an  end  by  imposing  a  settle- 
ment. A  well  known  instance  was  the  intervention  of 
Great  Britain  and  France  to  compel  Holland  to  acqui- 
esce in  the  settlement  which  the  powers  had  reached 
relative  to  the  separation  of  Belgium.  (Pitt  Cobbett: 
Cases,  3  ed.,  vol.  I,  p.  347.)  Again  in  1886  the  powers 
blockaded  the  coasts  of  Greece  to  prevent  that  state 


26We  must  agree  that  Dr.  Angell 's  criticism  of  Hall  is  well 
founded,  but  since  Hall 's  remarks  were  mainly  intended  to  ap- 
ply to  humanitarian  intervention  we  have  discussed  his  state- 
ment in  a  footnote  of  the  preceding  section  (§8). 


POLICE  REGULATION  287 

from  making  war  on  Turkey.  (Ibid,  p.  348.)  Similarly 
the  powers  intervened  to  save  Greece  from  the  victo- 
rious Turks  when  they  imposed  the  peace  settlement  of 
Sept.  18, 1897.  (Ibid,  p.  348.) 

Provisions  in  regard  to  the  limitations  of  armament 
and  the  guarantees  of  the  independence  and  integrity 
of  states  when  adopted  for  the  preservation  of  inter- 
national peace  and  security  (see  §  17),  are  instances 
of  international  police. 

The  justification  of  President  Roosevelt's  inter- 
vention in  favor  of  Panama  rests  upon  the  principles 
we  have  been  discussing.  Colombia  as  every  one  knew 
could  not  build  the  canal  herself  and  might  therefore  be 
required  to  permit  some  other  power  or  powers  to  un- 
dertake the  task  which  was  so  manifestly  beneficial  to 
the  commerce  of  all  the  nations.26 


26"By  the  rules  of  right  and  justice  universally  recognized 
among  men  and  which  are  the  law  of  nations,  the  sovereignty 
of  Colombia  over  the  Isthmus  of  Panama  was  qualified  and 
limited  by  the  right  of  the  other  civilized  nations  of  the  earth 
to  have  the  canal  constructed  across  the  Isthmus  and  to  have 
it  maintained  for  their  free  and  unobstructed  passage."  (Ex- 
tract from  address  by  Hon.  Elihu  Root  on  ' '  The  Ethics  of  the 
Panama  Question ' '  before  the  Union  League  Club  of  Chicago, 
Feb.  22,  1904,  printed  in  Senate  Document,  471,  63rd  Con- 
gress, 2nd  Session,  p.  39.) 

This  obligation  is  based  upon  the  fundamental  principle 
that  all  of  the  nations  are  required  to  cooperate  for  the  pur- 
pose of  facilitating  international  commerce.  This  was  the 
principle  which  justified  the  United  States  and  the  other 
powers  in  forcing  their  way  into  Japan  and  in  compelling  her 
to  negotiate  and  sign  treaties  providing  for  commercial  re- 
lations. The  right  to  use  international  rivers  which  pass 
through  another  state  rests  upon  the  same  basis.  ( Cf .  Wool- 
sey:  International  Law,  6th  ed.,  §  62,  p.  79-83.) 

Grotius  clearly  recognizes  the  right  to  use  the  territory  of 
another  state.  He  justifies  the  right  of  transit  for  the  purpose 
of  traffic  with  a  remote  nation,  or  in  the  prosecution  of  a  just 
war.  "The  reason,"  he  says,  "is  the  same  as  above;  that 
ownership  might  be  introduced  with  the  reservation  of  such 
a  use,  which  is  of  great  advantage  to  the  one  party  and  of  no 


288  INTERNATIONAL   POLICE 

Colombia  was  sovereign  over  the  territory  in  ques- 
tion, but  sovereignty  does  not,  as  we  have  seen,  permit 
a  state  to  make  an  abusive  use  of  its  rights.  Undoubt- 
edly, Colombia  would  have  had  the  right  to  attempt  in 
the  first  place  to  build  the  Canal  herself,  and  if  she 
could  not  or  would  not  do  this,  she  had  a  right  to  de- 
mand that  any  power  undertaking  the  work  should 
compensate  her  reasonably  for  the  territory  required 
and  for  any  damage  to  her  possessions. 

Instead  of  adopting  this  course,  the  Colombian  Gov- 
ernment kept  putting  obstacles  in  the  way  of  the 
United  States,  who  was  seeking  an  agreement  with 
Colombia  in  order  that  she  might  acquire  upon  reason- 


disadvantage  to  the  other;  and  the  authors  of  ownership  are 
to  be  supposed  to  have  intended  this."  (Grotius,  Bk.  II,  ch. 
II,  XIII,  §  1,  Whewell's  translation,  vol.  I,  p.  243;  cf.  also 
Vattel,  Bk.  II,  §  123,  Carnegie  translation,  p.  150.)  Whewell 
states:  "Gronovius  in  a  long  note  gives  very  strong  reasons 
why  this  right  of  transit  cannot  be  held,  and  cases  in  which  it 
has  been  negatived. ' '  But  this  objection  really  applies  only  to 
warlike  transit,  which  is  now  recognized  as  a  violation  of  neu- 
trality. At  the  time  when  Grotius  wrote,  military  transit  was 
recognized  and  was  a  good  example  of  the  limitation  of  sov- 
ereign right  for  the  benefit  of  what  was  then  considered  the 
interest  of  all  the  states.  The  principle  upon  which  Grotius 
then  based  the  right  of  military  transit  has  not  disappeared  be- 
cause this  particular  application  has  become  antiquated. 

In  the  same  chapter  Grotius  sets  forth  his  theory  of  the 
common  right  which  all  men  have  in  property  which  has  be- 
come private.  Even  those  who  do  not  accept  this  theory  in  its 
entirety  will  find  it  a  valuable  argument  in  the  support  of  the 
superior  right  of  the  community  over  the  property  held  by 
the  separate  members.  (Bk.  II,  ch.  II,  I  to  XI,  Whewell's 
Translation,  vol.  I,  p.  237-240.) 

The  United  States  was  justified  in  intervening  to  secure 
the  abolition  of  the  Danish  Sound  Dues.  ( See  Woolsey :  In- 
ternational Law,  6th  ed.,  p.  77-8.)  This  is  a  good  example  of 
the  principle,  even  though  the  Danish  vested  interests  were 
recognized  and  purchased  in  the  form  of  a  payment,  in  return 
for  which  Denmark  was  obligated  to  maintain  the  necessary 
lighthouses,  etc. 


POLICE  REGULATION  289 

able  terms  Colombia 's  acquiescence  in  the  undertaking 
to  build  the  canal.  This  abusive  action  of  the  Colom- 
bian Government  would  have  amply  justified  the 
United  States  in  seizing  the  needed  territory.  In  that 
event  the  additional  cost  of  the  military  operations 
would  justly  have  been  chargeable  to  Colombia's  ac- 
count and  any  balance  left  after  deducting  these  costs 
from  the  value  of  the  land  seized  would  have  belonged 
to  Colombia. 

The  action  of  the  Roosevelt  administration  was  not 
so  drastic.  The  same  legitimate  result  was  attained  by 
recognizing  the  Republic  of  Panama  and  signing  with 
that  country  a  satisfactory  treaty  for  the  construction 
of  the  Canal.  If  Colombia  had  not  given  the  United 
States  just  ground  for  intervening,  the  premature 
recognition  of  Panama  and  the  policing  of  the  Isthmus 
to  prevent  Colombia  from  landing  troops  and  sup- 
pressing the  revolt  would  have  been  unjustifiable  acts 
of  interference.  As  it  was,  however,  they  were  only 
milder  means  of  enforcing  the  right  of  the  United 
States  acting  for  all  the  states  to  build  the  Canal. 

In  enforcing  this  right,  the  United  States  was  acting 
as  the  agent  or  mandatory  of  all  the  states  of  the  world. 
So  acting,  President  Roosevelt  had  a  right  to  employ 
such  force  as  was  reasonably  necessary  to  attain  the 
legitimate  purpose  in  view.  The  premature  recogni- 
tion of  the  Republic  of  Panama,  which  was  itself  an 
act  of  intervention,  and  the  additional  act  of  interven- 
tion to  prevent  the  suppression  of  the  revolt,  were  as 
we  have  just  said  milder  measures  than  the  direct  seiz- 
ure of  the  territory  and  the  forcible  overcoming  of 
Colombia's  resistance. 

In  the  discussion  of  this  question,  much  emphasis 
has  been  laid  on  the  obligation  assumed  by  the  United 
States  in  article  35  of  the  Treaty  of  1846  to  guarantee 

19 


290  INTERNATIONAL   POLICE 

the  integrity  of  Colombia.  This  obligation  applied 
only  to  protect  Colombia  from  foreign  aggression.27 

In  the  preceding  discussion,  we  have  been  consider- 
ing the  question  of  the  Canal  as  though  Colombia  had 
been  completely  sovereign  over  the  territory,  through 
which  it  was  to  pass.  This  was  not  the  case.  Over  the 
Isthmus  the  United  States  had  acquired,  with  the  as- 
sumption of  the  burden  of  police  certain  rights  of  su- 
pervision.28 

This  supervisory  control  did  not  give  the  right  to  ap- 
propriate the  Canal  Zone,  but  it  gave  the  supervisory 
state  a  strong  justification  for  whatever  action  might 
be  reasonably  necessary  for  the  complete  fulfilment  of 
the  trust  to  which  it  was  committed. 

The  United  States  has  been  accused  of  instigating 
the  Panama  revolution  from  which  it  so  greatly  bene- 
fited. This  mere  assertion  has  divided  the  country 
somewhat  along  the  line  of  political  cleavage  between 

27For  an  extremely  able  and  thorough  discussion  of  the 
Treaty  of  1846,  and  Article  35,  which  contains  the  provisions 
relative  to  the  guaranty  of  transit,  see  William  C.  Dennis: 
The  Panama  Situation  in  the  Light  of  International  Law,  in 
American  Law  Register  (Published  by  the  Department  of  Law, 
University  of  Pennsylvania),  vol.  52,  May,  1904,  p.  265-306. 
Cf.  Travers  Twiss :  The  Law  of  Nations,  Vol.  I,  §  231,  p.  367- 
379,  where  the  nature  of  a  treaty  of  guarantee  is  considered. 

28The  effects  of  this  supervision  are  considered  in  the  fol- 
lowing section.  The  diplomatic  correspondence  relative  to 
the  Isthmus  shows  the  nature  of  the  American  supervision. 
The  United  States  had  assumed,  with  the  acquiescence  of 
Colombia,  onerous  obligations  for  the  police  of  the  territory  in 
question  and  in  so  doing,  the  United  States  was  fulfilling  obli- 
gations which  were  Colombia's,  but  from  which  Colombia  was 
in  a  certain  measure  excused  by  her  weakness.  This  police, 
or  supervisory  power,  over  the  Isthmus  for  the  purposes  of 
international  commerce  gave  to  any  action  to  facilitate  this 
commerce  (as  the  building  of  the  Canal)  the  benefit  of  a  prima 
facie  presumption  that  it  was  justifiable.  Another  power,  in- 
tervening for  the  same  laudable  purpose,  would  not  have  been 
entitled  to  this  same  presumption. 


POLICE  REGULATION  291 

the  two  camps  of  those  who  supported  President 
Roosevelt  and  his  policies  on  the  one  hand,  and  those 
who  disapproved  on  the  other.  No  shred  of  evidence 
has  ever  been  adduced  to  show  that  the  United  States 
did  instigate  the  revolution.29 

The  failure  to  understand  the  true  nature  of  police 
action  has  led  many  well-meaning  individuals,  some  of 
them  jurists  of  high  standing,  to  condemn  the  action  of 
President  Roosevelt.  They  have  seen  no  further  than 


29It  would  seem  that  this  wide-spread  opinion  is  based  in 
part  upon  Roosevelt 's  statement  in  his  speech  to  the  students 
of  the  University  of  California,  at  Berkeley,  Cal.,  March  23, 
1911 :  "I  am  interested  in  the  Panama  Canal  because  I  started 
it.  If  I  had  followed  traditional  conservative  methods  I  should 
have  submitted  a  dignified  state  paper  of  probably  two  hun- 
dred pages  to  the  Congress  and  the  debate  would  have  been 
going  on  yet.  But  I  took  the  canal  zone,  and  let  Congress  de- 
bate, and  while  the  debate  goes  on  the  canal  does  also. ' ' 

In  his  Autobiography  Roosevelt  has  described  his  conduct 
more  fully  and  exactly: 

"From  the  beginning  to  the  end  our  course  with  Colombia 
was  straightforward  and  in  absolute  accord  with  the  highest 
standards  of  international  morality.  Criticism  of  it  can  come 
only  from  misinformation,  or  else  from  sentimentality  which 
represents  both  mental  weakness  and  a  moral  twist.  To  have 
acted  otherwise  than  I  did  would  have  been  on  my  part  be- 
trayal of  the  interests  of  the  United  States,  indifference  to  the 
interests  of  Panama,  and  recreancy  to  the  interests  of  the 
world  at  large.  Colombia  had  forfeited  every  claim  to  con- 
sideration; indeed,  this  is  not  stating  the  case  strongly 
enough;  she  had  so  acted  that  yielding  to  her  would  have 
meant  on  our  part  that  culpable  form  of  weakness  which 
stands  on  a  level  with  wickedness.  As  for  me  personally,  if  I 
had  hesitated  to  act  and  had  not  in  advance  discounted  the 
clamor  of  those  Americans  who  have  made  a  fetish  of  disloy- 
alty to  their  country,  I  should  have  esteemed  myself  as  de- 
serving a  place  in  Dante's  Inferno  beside  the  faint-hearted 
cleric  who  was  guilty  of  "  il  gran  rifiuto. ' '  ( Extract  from  the 
Autobiography  of  Theodore  Roosevelt  and  printed  in  Senate 
Document  No.  471,  63rd  Congress,  2nd  Session,  p.  61.) 


292  INTERNATIONAL   POLICE 

the  right  of  Colombia  as  the  sovereign  of  the  Isthmus 
to  do  with  it  as  she  liked.30 

Those  who  entertain  such  sentiments  have  urged  and 
supported  the  agreement  to  pay  Colombia  $25,000,000 
indemnity ;  but  with  a  strange  contradiction  this  pay- 
ment is  not  to  be  accompanied  with  any  apology  for  the 
offense  which  it  acknowledges. 

Assuredly  it  is  hard  to  defend  such  a  payment.  If 
the  United  States  recognizes  that  it  was  at  fault,  it 
should  apologize.  If  there  be  a  reasonable  doubt  of 
the  matter,  arbitration  is  an  honorable  solution. 

In  the  absence  of  any  juridical  or  any  ethical  obli- 
gation to  compensate  Colombia,  a  donation  of  $25,000,- 


30Senator  Cullom  relates  how  President  Roosevelt  sent  for 
Senator  Hoar  when  he  was  present  to  discuss  with  him  the 
question  of  the  Panama  Canal. 

' '  The  President  wanted  the  Senator  to  read  a  message  which 
he  had  already  prepared  in  reference  to  Colombia's  action  in 
rejecting  the  treaty  and  the  canal  in  general;  which  message 
showed  clearly  that  the  President  had  never  contemplated 
the  secession  of  Panama,  and  was  considering  different  meth- 
ods in  order  to  obtain  the  right  of  way  across  the  Isthmus  from 
Colombia,  fully  expecting  to  deal  only  with  the  Colombian 
Government  on  the  subject.  The  President  was  sitting  on  the 
table,  first  at  one  side  of  Senator  Hoar,  and  then  on  the  other, 
talking  in  his  usual  vigorous  fashion,  trying  to  get  the  Sena- 
tor's attention  to  the  message.  Senator  Hoar  seemed  adverse 
to  reading  it,  but  finally  sat  down,  and  without  seeming  to  pay 
any  particular  attention  to  what  he  was  perusing,  he  remained 
for  a  minute  or  two,  then  arose  and  said : 

"  '  I  hope  I  may  never  live  to  see  the  day  when  the  interests 
of  my  country  are  placed  above  its  honor. ' 

"He  at  once  retired  from  the  room  without  uttering  an- 
other word,  proceeding  to  the  Capitol. 

"Later  in  the  morning  he  came  to  me  with  a  typewritten 
paper  containing  the  conversation  between  the  President  and 
himself,  and  asked  me  to  certify  to  its  correctness.  I  took  the 
paper  and  read  it  over,  and  as  it  seemed  to  be  correct,  as  I 
remembered  the  conversation,  I  wrote  my  name  on  the  bottom 
of  it.  I  have  never  seen  or  heard  of  the  paper  since."  (Cul- 
lom, Shelby  M. :  Fifty  Years  of  Public  Service,  p.  212-213.) 


POLICE  REGULATION  293 

000  will  be  open  to  misinterpretation,  and  since  the 
honor  of  the  United  States  is  concerned  it  would  be 
neither  wise  nor  just.31 

Discussing  in  an  address  before  the  Union  League 
Club  of  Chicago  the  ''Ethics  of  the  Panama  Question," 
Mr.  Root  did  more  than  cover  the  ethical  grounds  of 
justification  for  President  Roosevelt's  act.  He  also 
laid  down  the  fundamental  juridical  principle  which 
governs  all  action  of  a  similar  nature.  Mr.  Root  said 
in  part : 

' '  It  frequently  happens  in  affairs  of  government  that 
most  important  rights  are  created,  modified,  or  practi- 
cally destroyed  by  gradual  processes,  and  by  the  indi- 
rect effect  of  events ;  and  that  only  an  intimate  knowl- 
edge of  the  process  enables  one  to  realize  the  change 
until  some  practical  question  arises  which  requires 
everyone  interested  to  study  the  subject.  If  the  typical 
New  Zealander,  ignorant  of  our  political  history,  were 
to  read  our  Constitution  and  laws,  he  would  suppose 
that  a  presidential  elector  in  the  United  States  is  en- 
titled to  exercise  freedom  of  choice  in  his  vote  for 
President,  and  he  would  be  quite  certain  that  we  were 
guilty  of  gross  injustice  in  the  treatment  which  we 
should  certainly  accord  to  an  elector  who  voted  for 
anyone  but  the  candidate  of  his  own  party.  In  forming 
this  judgment,  he  would  be  misled  by  the  form  and  ap- 

31The  apparently  equitable  basis  upon  which  one  opinion 
in  support  of  the  treaty  rests,  is  that  the  United  States  should 
not  by  the  exercise  of  force  directly,  or  by  indirection,  gain 
at  the  expense  of  Colombia.  But  Colombia  rejected  the  basis 
of  reasonable  compensation,  and  it  may  well  be  questioned 
whether  other  obstreperous  states  should  be  encouraged  in  an 
unreasonable  resistance  to  action  for  the  common  good,  as 
they  would  be  if  they  could  in  last  analysis  rely  upon  the 
power  that  had  been  resisted  to  make  good  the  cost.  Such  a 
practice  would  not  tend  to  support  and  develop  the  settle- 
ment of  international  controversies  upon  the  basis  of  juridical 
principles. 


294  INTERNATIONAL   POLICE 

pearance  of  things  which  he  found  upon  the  statute 
book,  and  would  misjudge  a  people  who  were  acting  in 
accordance  with  the  substance  and  reality  of  things  as 
they  knew  them  to  be.  In  the  same  way,  they  are  in 
error  who  assume  that  the  relations  of  Colombia  to  the 
other  nations  of  the  earth  as  regards  the  Isthmus  of 
Panama  were,  in  truth,  of  unqualified  sovereignty  and 
right  of  domestic  control  according  to  her  own  will, 
governed  and  protected  by  the  rules  of  international 
law,  which  describe  the  attributes  of  complete  sov- 
ereignty ;  that  the  relations  of  Colombia  to  the  people 
of  Panama  were,  in  truth,  those  appearing  in  the  writ- 
ten instrument  called  the  Constitution  of  Colombia; 
or  that  the  rights  and  duties  of  the  United  States  in  re- 
gard to  the  Isthmus  were  confined  to  the  simple  duty  of 
aiding  Colombia  to  maintain  her  control  over  the  Isth- 
mus, and  the  simple  right  to  ask  from  Colombia  privi- 
leges which  that  country  was  entitled  to  grant  or  with- 
hold at  her  own  pleasure. 

"The  stupendous  fact  that  has  dominated  the  history 
and  must  control  the  future  of  the  Isthmus  of  Panama 
is  the  possibility  of  communication  between  the  two 
oceans.  It  is  possible  for  human  hands  to  pierce  the 
narrow  40  miles  of  solid  earth  which  separate  the  Car- 
ibbean from  the  Bay  of  Panama,  to  realize  the  dreams 
of  the  early  navigators,  to  make  the  pathway  to  the 
Orient  they  vainly  sought,  to  relieve  commerce  from 
the  toils  and  perils  of  its  9,000  miles  of  navigation 
around  Cape  Horn  through  stormy  seas  and  along 
dangerous  coasts  with  its  constant  burden  of  wasted 
effort  and  shipwreck  and  loss  of  life,  and  to  push  for- 
ward by  a  mighty  impulse  that  intercommunication  be- 
tween the  distant  nations  of  the  earth  which  is  doing 
away  with  misunderstanding,  with  race  prejudice  and 
bigotry,  with  ignorance  of  human  rights  and  oppor- 
tunity for  oppression,  and  making  all  the  world  kin. 


POLICE  REGULATION  295 

"  Throughout  the  centuries  since  Philip  II  sat  upon 
the  throne  of  Spain,  merchants  and  statesmen  and  hu- 
manitarians and  the  intelligent  masses  of  the  civilized 
world  have  looked  forward  to  this  consummation  with 
just  anticipations  of  benefit  to  mankind.  No  savage 
tribes  who  happened  to  dwell  upon  the  Isthmus  would 
have  been  permitted  to  bar  this  pathway  of  civilization. 
By  the  universal  practice  and  consent  of  mankind  they 
would  have  been  swept  aside  without  hesitation.  No 
Spanish  sovereign  could,  by  discovery  or  conquest  or 
occupation,  preempt  for  himself  the  exclusive  use  of 
this  little  spot  upon  the  surface  of  the  earth  dedicated 
by  nature  to  the  use  of  all  mankind.  No  civil  society 
organized  upon  the  ruins  of  Spanish  dominion  could 
justly  arrogate  to  itself  over  this  tract  of  land  sov- 
ereignty unqualified  by  the  world's  easement  and  all 
the  rights  necessary  to  make  that  easement  effective. 
The  formal  rules  of  international  law  are  but  declara- 
tions of  what  is  just  and  right  in  the  generality  of  cases. 
But  where  the  application  of  such  a  general  rule  would 
impair  the  just  rights  or  imperil  the  existence  of  neigh- 
boring States  or  would  unduly  threaten  the  peace  of  a 
continent  or  would  injuriously  affect  the  general 
interests  of  mankind,  it  has  always  been  the  practice  of 
civilized  nations  to  deny  the  application  of  the  formal 
rule  and  compel  conformity  to  the  principles  of  justice 
upon  which  all  rules  depend.  The  Danubian  Princi- 
palities and  Greece  and  Crete,  and  Egypt,  the  passage 
of  the  Dardanelles,  and  the  neutralization  of  the  Black 
Sea  are  familiar  examples  of  limitations  in  derogation 
of  those  general  rules  of  international  law  which  de- 
scribe the  sovereignty  of  nations."  (Extract  from  ad- 
dress by  Hon.  BHhu  Root  on  "The  Ethics  of  the  Pana- 
ma Question,"  before  the  Union  League  Club  of  Chi- 
cago, Feb.  22,  1904,  printed  in  Senate  Document  471, 
63rd  Congress,  2nd  Session,  p.  37-38.) 


296  INTERNATIONAL   POLICE 

The  subject  of  supervisory  or  paramount  control 
is  considered  in  the  following  section,  but  in  relation 
to  the  question  of  Panama  we  may  here  appropriately 
quote  a  letter  which  President  Roosevelt  on  January 
18,  1904,  addressed  to  Cecil  Arthur  Spring-Rice,  at  the 
British  Foreign  Office,  London : 

"I  have  been  having  most  interesting  times.  I  have 
succeeded  in  accomplishing  a  certain  amount  which  I 
think  will  stand.  I  believe  I  shall  put  through  the 
Panama  treaty  (my  worst  foes  being  those  in  the  Sen- 
ate and  not  those  outside  of  the  borders  of  the  United 
States)  and  begin  to  dig  the  canal.  It  is  always  diffi- 
cult for  me  to  reason  with  those  solemn  creatures  of 
imperfect  aspirations  after  righteousness,  who  never 
take  the  trouble  to  go  below  names.  These  people 
scream  about  the  injustice  done  Colombia  when  Pana- 
ma was  released  from  its  domination,  which  is  pre- 
cisely like  bemoaning  the  wrong  done  to  Turkey  when 
Herzegovina  was  handed  over  to  Austria.  It  was  a 
good  thing  for  Egypt  and  the  Soudan,  and  for  the 
world,  when  England  took  Egypt  and  the  Soudan. 
It  is  a  good  thing  for  India  that  England  should 
control  it.  And  so  it  is  a  good  thing,  a  very 
good  thing,  for  Cuba  and  for  Panama  and  for 
the  world  that  the  United  States  has  acted  as  it  has 
actually  done  during  the  last  six  years.  The  people 
of  the  United  States  and  the  people  of  the  Isthmus  and 
the  rest  of  mankind  will  all  be  the  better  because  we  dig 
the  Panama  Canal  and  keep  order  in  its  neighborhood. 
And  the  politicians  and  revolutionists  at  Bogota  are 
entitled  to  precisely  the  amount  of  sympathy  we  extend 
to  other  inefficient  bandits. ' '  ( Theodore  Roosevelt  and 
His  Time,  shown  in  his  own  letters,  by  Joseph  Bucklin 
Bishop,  New  York,  1920,  Vol.  I,  p.  297.) 

In  most  of  the  instances  of  recourse  to  international 
police  power,  it  will  be  found  that  the  action  is  taken  in 


SUPERVISION  297 

regard  to  some  state  over  which  there  has  grown  up  in 
some  sort  an  habitual  control  as  was  the  case  in  regard 
to  the  Isthmus  of  Panama. 

§  10.    SUPERVISION 

International  law  is  based  upon  the  principle  of  ter- 
ritorial sovereignty  and  looks  to  those  communities 
which  have  the  ability  to  maintain  their  independence 
for  the  enforcement  of  international  law  within  the 
jurisdiction  over  which  they  are  recognized  as  sov- 
ereign. The  states  which  fulfil  this  expectation  are 
recognized  as  independent  and  as  full  members  of  the 
society  of  nations.  But  international  relations  are 
complicated  by  the  presence  of  a  considerable  number 
of  states  who,  notwithstanding  the  formal  recognition 
of  their  full  legal  status  as  members  of  the  society  of 
states,  are  not  in  fact  always  able  to  fulfil  satisfactorily 
the  requirements  which  international  law  imposes 
upon  them,  either  because  they  are  unable  to  exact 
from  other  states  a  due  regard  for  their  international 
rights  or  because  within  their  own  jurisdiction,  they 
are  unable  to  maintain  order  and  to  secure  for  aliens 
the  peaceful  enjoyment  of  the  rights  to  which  they  are 
entitled.32 


32No  entirely  satisfactory  term  can  be  found  to  express  the 
relationship  considered  in  this  section.  Various  words  have 
been  employed,  such  as  "hegemony,"  "primacy,"  "police 
jurisdiction"  (Bernard:  Non-intervention,  p.  24),  "tutelage 
ibid,  p.  8 ;  cf .  Moore :  Asylum  in  Legations,  Political  Science 
Quarterly,  Vol.  7  (1892)  p.  16),  "surveillance"  (A.  H.  Snow: 
The  Question  of  Aborigines  in  the  Law  and  Practice  of  Na- 
tions, p.  21,  27),  "next  friend,"  "international  patron" 
(ibid,  p.  21),  "international  guardianship"  (ibid,  p.  21). 
"Client  State"  (Lawrence:  Principles,  4th  ed.,  §  39,  p.  66, 
§  64,  p.  126). 

Professor  Bernard  well  depicts  this  condition  of  statehood : 
"All  men  are  not  in  fact  completely  free,  nor  are  all  states 


298  INTERNATIONAL   POLICE 

It  is  evident  that  the  neighboring  states  suffer  the 
principal  inconvenience  from  this  situation.  Their  ex- 
tensive relations  with  the  state  in  question  oblige  them 
more  frequently  to  have  recourse  to  force  to  secure  re- 
dress for  the  violation  of  their  rights,  and  they  are 
constantly  a  prey  to  apprehension  lest  some  powerful 
state,  claiming  to  seek  redress,  acquire  a  dangerous 
political  control  over  these  adjacent  territories.  States 
of  the  second  rank  are  not  able  to  offer  any  effective 
opposition  to  such  designs,  but  if  amongst  the  neigh- 
bors of  the  delinquent  state  (incapacitated  state),  there 
be  one  of  the  first  rank,  it  will  never  permit  a  distant 
rival  to  establish  its  influence  and  control  so  near  at 
hand.  But  it  is  difficult  to  interfere  with  the  action  of 
any  state  seeking  reasonable  redress,  unless  the  inter- 
completely  sovereign.  There  may  be  states  in  name,  which  are 
not  such  in  reality — Governments  which  labor  under  an  in- 
curable incapacity  to  govern,  and  which  a  makeshift  policy 
keeps  alive  under  an  irregular  and  capricious  tutelage,  in 
order  to  avoid,  on  the  one  hand,  the  embarrassments  which 
would  be  occasioned  by  their  fall,  and  to  prevent,  on  the  other, 
as  far  as  possible,  (for  such,  efforts  often  come  too  late,)  atro- 
cious barbarities  and  gross  oppressions.  To  such  cases  the 
principle  does  not  apply,  and  the  hopeless  infirmity  which 
makes  interference  necessary  is  an  evil  that  we  have  to  deal 
with  in  the  best  way  we  can.  Again,  there  is  the  anomalous 
thing  called  a  'Protected  State' — a  relation  which  almost 
necessarily  involves  more  or  less  of  falsehood,  in  which  you 
have  on  the  one  side  a  galling  or  corrupting  dependence,  and, 
on  the  other,  power  without  definite  responsibility  and  re- 
sponsibilities without  effective  control."  (Mountague  Ber- 
nard: The  Principles  of  non-intervention  (1860),  p.  7-8); 
Westlake's  (International  Law,  1:121-144)  study  of  "Colon- 
ial Protectorates"  and  ''Spheres  of  Influence"  is  also  of  inter- 
est. 

"Supervision"  seemed  on  the  whole  to  best  express  the  re- 
lationship. I  have  recently  been  gratified  to  find  that  the 
late  Alpheus  H.  Snow  used  this  same  designation  in  the  proj- 
ect of  a  code  of  the  Law  of  Nations  published  in  the  pro- 
ceedings of  the  American  Society  of  International  Law  (1911, 
p.  330). 


SUPERVISION  299 

f  ering  neighbor  state  is  willing  to  assume  a  certain  re- 
sponsibility to  supervise  the  incapacitated  state  and  to 
see  that  it  fulfils  its  obligations.  If  the  great  power 
that  exercises  this  supervision  is  careful  to  refrain 
from  all  unnecessary  interference  in  the  internal  af- 
fairs of  the  state  in  question,  the  incapacitated  state 
will  generally  recognize  that  the  supervising  state 
shields  it  from  falling  a  prey  to  the  rapacity  of  some 
other  less  considerate  power.  In  the  course  of  time, 
and  as  a  result  of  the  recognition  of  the  mutual  advan- 
tage of  this  relationship,  the  state  of  the  first  rank  will 
be  established  de  facto  in  a  position  of  supervision  or 
control  over  its  weaker  neighbor.33  Even  though  this 
situation  receive  not  recognition  in  international  law, 
in  practice  it  will  be  taken  into  account  by  the  govern- 
ments of  all  the  states. 

There  are  various  degrees  of  this  supervisory  con- 
trol. The  United  States  exercises  such  supervision 
over  the  states  of  Central  America,  and  in  some  meas- 
ure over  South  America  as  well.  This  is  what  is  some- 
times spoken  of  as  a  regional  control.34 


33This  process  recalls  the  beneficium  and  commendatio  of  the 
feudal  system. 

34For  a  short  account  of  the  Monroe  Doctrine  brought  up  to 
date,  see  John  Bassett  Moore:  Principle  of  American  Diplo- 
macy, p.  238-269 ;  Bibliography,  p.  268.  Professor  Moore  says 
(ibid,  p.  258-9),  "The  'Monroe  Doctrine'  has  in  reality  be- 
come a  convenient  title  by  which  is  denoted  a  principle  that 
doubtless  would  have  been  wrought  out  if  the  message  of  1823 
had  never  been  written — the  principle  of  the  limitation  of 
European  power  and  influence  in  the  Western  Hemisphere." 
The  void  filled  by  this  limitation  on  Europe  is  filled  by  the 
counterbalancing  hegemony  of  the  United  States. 

A  study  of  the  history  of  American  Diplomacy  indicates  that 
there  has  been  a  tendency  on  the  part  of  the  United  States 
to  use  this  paramount  position  to  protect  the  weaker  and  more 
backward  American  States  from  European  dictation  and  all 
coercion  above  and  beyond  what  was  reasonable  to  obtain 
redress.  Even  when  measures  of  force  have  been  reasonably 


300  INTERNATIONAL   POLICE 

Other  states  exercise  a  similar  authority  over  ad- 
jacent states  that  are  not  by  their  own  unaided  efforts 

employed,  the  satisfaction  exacted  has  not  been  allowed  to  in- 
clude the  cession  of  territory  or  the  establishment  of  a  super- 
vision over  the  finances  or  other  internal  affairs  of  the  de- 
linquent state.  In  place  thereof,  the  United  States  exerts  itself 
to  arrange  a  satisfactory  settlement  without,  nevertheless,  as- 
suming or  shouldering  the  responsibility  by  guaranteeing  the 
payment.  In  a  less  conspicuous  manner,  this  government  has 
exercised  diplomatic  pressure  to  prevent  wars  and  restrict  the 
revengeful  acts  of  warring  factions.  As  regards  territory  in 
proximity  to  its  frontiers  or  to  the  Canal  (perhaps  also  all 
American  territory),  the  United  States  is  understood  to  pro- 
hibit even  a  voluntary  transfer  to  any  European  country. 
This  perhaps  affords  the  clearest  evidence  of  the  regional  con- 
trol of  the  United  States.  Professor  Moore,  in  the  work  above 
referred  to,  and  in  his ' '  Digest  of  International  Law, ' '  supplies 
the  evidence  in  support  of  these  assertions.  More  recently, 
President  Wilson's  administration  has  extended  the  scope  of 
this  regional  control  so  as  to  forbid  the  establishment  of  new 
governments  by  crimes  and  in  violation  of  constitutional  prin- 
ciples, notably  in  the  case  of  Huerta  (see  Moore:  Principles 
of  American  Diplomacy,  p.  217-225)  and  still  more  recently 
in  that  of  the  Tinoco  Government  in  Costa  Rica.  (See  World, 
August  3,  1920.)  Whatever  difference  of  opinion  may  exist  as 
to  the  justification  and  wisdom  of  this  policy,  its  effect  to  bring 
the  states  in  question  more  closely  under  the  supervisory  con- 
trol of  the  United  States  can  hardly  be  questioned. 

The  relation  of  the  United  States  to  the  little  African  Re- 
public of  Liberia  is  described  by  Alpheus  H.  Snow  in  his 
scholarly  consideration  of  ' '  The  Question  of  Aborigines  in  the 
Law  and  Practice  of  Nations"  (Government  Printing  Office, 
Washington,  1919,  p.  21)  :  "The  American  negro  settlements 
on  the  west  coast  of  Africa  maintained  a  precarious  existence 
and  an  indefinite  international  status.  They  resembled  colo- 
nies of  the  United  States  to  some  extent,  but  the  United  States, 
on  account  of  the  Monroe  doctrine,  denied  itself  sovereignty 
over  them,  and  asserted  their  independence  under  its  patron- 
age. Their  international  independence  was  at  last  recognized 
and  the  State  of  Liberia  came  into  existence.  The  United 
States  has  stood  in  the  position  of  'next  friend,'  or  inter- 
national patron,  disclaiming  sovereignty  or  control  of  any 
kind,  but  holding  itself  morally  obligated  to  use  its  good  of- 
fices on  behalf  of  Liberia  in  all  international  complications. 
It  has  thus  maintained  a  species  of  international  guardianship 


SUPERVISION  301 

able  effectively  to  maintain  their  full  international 
status. 


—  a  benevolent  surveillance  without  claim  of  sovereignty  or 
responsibility.  '  ' 

Professor  Delbriick,  discussing  President  Wilson's  inter- 
vention policy  in  Mexico,  said  in  the  course  of  an  interview 
(New  York  Sun,  Nov.  9,  1913)  :  "  Other  questions,  however. 
are  involved.  Who  gave  the  United  States  the  overlordship  of 
the  Western  Hemisphere?  By  what  right,  moral  or  other- 
wise, does  the  United  States  interfere  in  Mexico  and  dictate 
who  is  to  be  President?  No  right  exists.  There  is  no  ques- 
tion but  might,  which  is  not  changed  by  the  fact  that  the 
people  themselves  and  civilization  in  general  probably  will  be 
served  thereby." 

Prof.  Hershey  (Essentials  of  International  Law,  §  142,  p. 
152-3)  discusses  "The  Primacy  of  the  United  States  in  Ameri- 
ca. '  '  He  considers  that  "  it  is  a  primacy  essentially  political  in 
its  nature,  which  has  no  legal  basis  whatsoever,  but  rests  upon 
certain  maxims  enumerated  by  the  fathers  of  the  Republic, 
and  applied  by  American  statesmen." 

Bertrand  Russell  (Why  Men  Fight,  p.  108)  says:  "The 
South  American  Republics  are  sovereign  for  all  purposes  ex- 
cept their  relations  with  Europe,  in  regard  to  which  they  are 
subject  to  the  United  States:  in  dealings  with  Europe,  the 
army  and  navy  of  the  United  States  are  their  army  and  navy.  '  ' 

An  English  writer  expresses  the  following  opinion:  "The 
Monroe  Doctrine  is  nothing  more  than  the  expansion  of  the 
natural  sense  of  guardianship  felt  by  the  United  States  as  the 
predominant  power  in  that  part  of  the  world  for  the  minor 
states  whose  institutions  are  more  or  less  modelled  on  their 
own,  which  is  aroused  when  a  likelihood  arises  of  interference 
with  their  liberty  or  institutions  on  the  part  of  a  foreign 
power."  (F.  W.  Payn:  Cromwell  on  Foreign  Affairs,  p.  85.) 

In  his  remarkable  study  of  this  relationship  between  states 
in  different  stages  of  political  and  social  development,  Al- 
pheus  H.  Snow  (Question  of  Aborigines  in  the  Law  and  Prac- 
tice of  Nations,  p.  196)  considers  that  the  trusteeship  of  the 
superior  state  "...  is  for  conservation  and  elevation  of  status. 
A  conservator  or  guardian  can  find  in  the  private  law  no  war- 
rant for  altering  for  the  worse  the  social  status  of  the  incom- 
petent person  or  the  ward.  His  duty  is  to  alter  it,  if  possible, 
for  the  better. 

"When  the  United  States  extended  its  sovereignty  over 
Cuba,  the  Philippines,  and  Porto  Rico,  as  the  result  of  the 
Spanish  War,  the  public  sentiment  was  strongly  against  'im- 


BARBARA  STATE  COLLEGE  LIBRA*! 


302  INTERNATIONAL   POLICE 

Captain  Mahan,  referring  to  the  parable  in  the 
Bible  (Matthew  XXVI,  14-29)  maintains  "that  the  pos- 

perialism'  and  in  favor  of  the  doctrine  that  'the  Constitution 
follows  the  flag.'  In  developing  a  conception  of  the  law  of 
nations  which  should  take  account  of  this  public  sentiment  the 
American  Government  based  itself  upon  the  conception  of  a 
trusteeship  implied  in  sovereignty.  By  recognizing  this 
trusteeship  under  the  law  of  nations,  through  acts  of  the  gov- 
ernment declaratory  of  the  trust,  the  relationship  between  the 
United  States  and  the  countries  to  which  its  sovereignty  was 
extended  was  established  as  being  social  and  not  imperial,  and 
the  spirit  of  the  Constitution  was  made  to  follow  the  flag  and  to 
permeate  the  spirit  of  the  peoples  within  whose  territories 
the  flag  had  been  raised  by  the  power  of  the  United  States  in 
conformity  with  the  existing  law  of  nations. ' ' 

In  a  campaign  speech  (New  York  Herald,  Aug.  29,  1920) 
President  Harding,  inveighing  against  what  he  considered  the 
abuse  of  this  power,  said :  ' '  Nor  will  I  misuse  the  powers  of 
the  Executive  to  cover  with  a  veil  of  secrecy  repeated  acts  of 
unwarrantable  interference  in  domestic  affairs  of  the  little 
republics  of  the  western  hemisphere,  such  as  in  the  past  few 
years  have  not  only  made  enemies  of  those  who  should  be  our 
friends,  but  have  rightfully  discredited  our  country  as  their 
trusted  neighbor." 

"The  following  extract  is  from  a  letter  of  Hon.  E.  J.  Phelps, 
written  at  the  time  of  our  intervention  in  Cuba:  "The  idea 
that  this  country,  or  any  other,  is  justified  in  undertaking  a 
moral  or  political  supervision  over  the  affairs  of  its  neighbors, 
and  in  correcting  by  armed  invasion  the  faults  of  their  insti- 
tutions or  the  mistakes  of  their  administration,  or  administer- 
ing charity  to  them  by  force,  is  absolutely  inadmissible  and 
infinitely  mischievous."  (E.  J.  Phelps,  Letter  in  New  York 
Herald,  March  29,  1898.) 

Lord  Eustace  Percy,  one  of  the  ablest  of  the  younger  Brit- 
ish diplomatists,  stationed  several  years  at  Washington,  dis- 
cusses with  a  frankness  which  gives  added  value  to  his  remarks 
the  relations  of  the  United  States  to  her  weaker  neighbors : 

"In  the  last  few  years  the  United  States  has  been  driven 
into  a  policy  of  expansion  in  Nicaragua,  in  Hayti,  and  in  Santo 
Domingo ;  but  her  motives  have  been,  not  financial,  but  strate- 
gic and  humanitarian.  From  the  strategic  point  of  view  she 
cannot  tolerate  chronic  misgovernment  in  any  of  the  states 
lying  within  and  on  the  flank  of  the  'south  coast  line'  to  which 
she  has  now  pushed  forward  her  strategic  frontier — the  line 
through  the  Caribbean  from  Cuba  to  Colon  and  Panama.  And 


SUPERVISION  303 

session  of  power  is  a  talent  committed  in  trust,  for 
which  account  will  be  exacted,  and  that,  under  some 


even  if  it  had  been  possible  on  grounds  of  expediency  to  ig- 
nore such  misgovernment,  the  humanitarian  attitude  which 
has  been  her  boast  would  have  made  inaction  impossible. 

"The  Nicaraguan  policy  of  the  United  States  displays  the 
same  features  as  her  Cuban  record.  She  has  exerted  her  in- 
fluence, has  intervened,  has  withdrawn — has,  in  short  done 
everything  but  assume  direct  and  permanent  responsibilities. 
She  aided  and  abetted  the  expulsion  from  Nicaragua  of  the 
dictator  Zelaya;  she  then,  in  1910,  went  very  near  interven- 
tion for  the  overthrow  of  Madriz,  whom  she  regarded  as 
Zelaya 's  legatee,  and  when  the  expulsion  of  that  gentleman 
failed  to  lead  to  a  restoration  of  stable  government,  she  ac- 
tually intervened  in  1912,  and  sent  marines  to  Managua.  The 
opposition  of  the  Senate  defeated  President  Taft's  first  at- 
tempt to  deal  with  Nicaragua  as  his  predecessor  had  dealt 
with  Santo  Domingo  and  President  Wilson  found  at  the  out- 
set of  his  administration  that  he  was  responsible  for  a  Nica- 
raguan government  placed  in  power  by  American  bayonets, 
but  with  no  means  of  controlling  or  maintaining  it.  This, 
indeed,  is  still  the  position  at  the  present  day.  The  United 
States  has  recently  gone  so  far  as  to  conclude  an  agreement 
with  the  Nicaraguan  Government  by  which  she  acquires  a 
naval  base  in  the  Bay  of  Fonseca,  an  option  on  the  construc- 
tion of  any  inter-oceanic  canal  across  Nicaraguan  territory, 
and  a  measure  of  control  over  Nicaraguan  finances.  There, 
however,  she  has  stopped.  She  has  not  taken  over  the  foreign 
relations  of  Nicaragua  and  has  done  little  to  regularise  the 
relations  of  this  small  republic  either  with  the  outside  world  or 
with  its  Central  American  neighbors. ' '  (Lord  Eustace  Percy : 
The  Responsibilities  of  the  League,  p.  90-92.  Hodd«r  and 
Stoughton,  London,  1919.) 

A  few  pages  further  on,  Lord  Eustace  writes : 

' '  The  United  States  has  therefore  responsibilities  for  Cuba. 
Foreign  nations  can  call  on  her  to  secure  their  just  rights  in 
the  island.  Cuba  is  made  a  sort  of  dependency  of  the  United 
States,  and  the  United  States  has  shown  that  she  is  fully  alive 
to  considerations  of  what  may  be  called  strategic  imperialism, 
by  acquiring  naval  stations  on  the  shores  of  Cuba  at  Guan- 
tanamo  and  Bahia  Honda. 

"Moreover,  the  Platt  amendment  has  not  remained  a  dead 
letter.  In  1906,  the  United  States  made  use  of  her  powers 
under  Clause  3  by  occupying  the  island  and  she  remained 
there  for  three  years.  During  this  second  occupation  she 


304  INTERNATIONAL   POLICE 

circumstances,  an  obligation  to  repress  evil  external  to 
its  borders  rests  upon  a  nation,  as  surely  as  responsi- 
bility for  the  slums  rests  upon  the  rich  quarters  of  a 
city."  (A.  H.  Mahan:  Some  Neglected  Aspects  of 
War,  p.  107.) 

went  considerably  deeper  in  laying  the  foundations  of  govern- 
ment than  she  had  first  attempted  to  do.  The  whole  of  Cuban 
law  underwent  a  radical  revision,  and  when  the  second  evacu- 
ation took  place  in  1909,  Americans  had  become  much  more 
keenly  conscious  how  serious  was  the  task  of  securing  good 
government  for  the  people  they  had  freed.  Many  people  con- 
versant with  Cuban  conditions  thought  the  evacuation  pre- 
mature, and  experience  has  more  or  less  borne  out  their  appre- 
hensions. Till  1913  the  government  of  Cuba  remained  thor- 
oughly bad.  Public  opinion  in  the  United  States  became  in- 
creasingly convinced,  especially  during  the  negro  risings  of 
1912,  that  a  third  occupation  would  be  necessary.  An  im- 
provement has  taken  place  since  the  election  of  President 
Menocal  in  1913,  but  a  serious  doubt  has  grown  up  in  the  mind 
of  thoughtful  Americans  whether  their  policy  is  really  ade- 
quate. Cuba  is  a  ward,  she  is  not  wholly  and  solely  responsible 
for  her  own  actions,  she  has  recognized  the  United  States  as 
her  guardian.  But  this  guardianship  is  only  potential.  In 
ordinary  times  it  is  in  abeyance,  and  takes  no  stronger  re- 
form [a  form]  than  that  of  diplomatic  lectures."  (Ibid,  p. 
85-7.)  Professor  Moore  has  given  a  brief  and  clear  account 
of  the  relations  between  the  United  States  and  the  republics 
to  the  south  of  us.  ( J.  B.  Moore :  Principles  of  American  Di- 
plomacy, p.  400-408;  cf.  also  Dickinson:  The  Equality  of 
States,  1920,  p.  246-7.) 

In  the  ancient  Hindoo  philosophy,  we  find  an  interesting 
statement  of  the  objections  incident  to  political  control  of  one 
state  by  another.  Benoy  Kinnar  Sarkar,  in  his  article  discuss- 
ing the  doctrine  of  Mandala  (American  Political  Science  Re- 
view, August,  1919,  p.  400)  quotes  Shookra  to  the  effect  that 
"Great  misery  comes  of  dependence  on  others.  There  is  no 
greater  happiness  than  that  from  self  rule,"  and  Kautila's 
remark  on  ' '  Foreign  rule ' '  to  the  effect  that  such  a  ' '  country 
is  not  treated  as  one's  own  land,  it  is  impoverished,  its  wealth 
carried  off,  or  it  is  treated  as  a  'commercial  article.'  '  Mr. 
Sarkar  remarks  that  this  description  recalls  John  Stuart  Mill 's 
metaphor  of  the  "cattle  farm"  applied  to  the  "government 
of  one  people  by  another. ' ' 


SUPERVISION  305 

The  supervisory  relationship  is  held  by  some  to  af- 
fect the  equality  and  the  independence  of  the  states 
concerned,  but  this  effect  does  not  flow  from  the  re- 
gional control  itself,  but  the  regional  control  is  merely 
a  recognition  and  a  result  of  a  condition  which  exists 
de  facto.  It  is  of  first  importance  for  the  successful 
development  of  international  law  and  the  harmonious 
conduct  of  international  relations  that  this  supervisory 
control  should  be  more  fully  understood  and  recognized 
as  a  part  of  international  law. 

The  following  unimportant  incident  illustrated  this 
need  of  a  better  recognition  of  the  correct  principle: 
When  the  French  landed  men  in  Hayti  during  the  dis- 
turbance in  1915,  the  account  in  the  New  York  Sun, 
June  23,  stated:  "As  a  result  of  the  French  having 
landed  men,  it  became  necessary  for  the  United  States 
to  send  a  bigger  ship  and  an  officer  of  higher  rank  than 
the  Descartes  and  her  commander."  If  the  supervi- 
sory control  of  the  United  States  in  Hayti  were  to  be 
fully  recognized  in  international  law,  such  a  matter  of 
ceremonial  procedure  would  give  way  to  the  more  di- 
rect authority  of  an  American  commander  whatever 
might  be  his  rank  or  the  size  of  his  ship. 

In  practice  this  regional  control  is  found  to  adapt 
itself  so  perfectly  to  the  practical  application  of  the 
principles  of  international  law  that  this  system,  which 
was  at  first  a  mere  compromise  applied  in  special  in- 
stances has  now  become  an  important  part  of  our  in- 
ternational system.35 

35See  Stowell's  Diplomacy  of  the  War  of  1914,  p.  497-502. 
Palmerston  in  a  letter  to  Lord  John  Russell,  Aug.  9,  1847, 
frankly  states  the  true  status  of  Portugal  and  the  reason  why 
its  separate  existence  has  been  preserved.  He  writes,  " . . . , 
and  it  is  only  by  maintaining  Portugal  in  its  separate  exist- 
ence, and  in  its  intimate  and  protected  state  of  alliance  with 
England,  that  we  can  be  sure  of  having  the  Tagus  as  a  friendly 
instead  of  its  being  a  hostile  naval  station."  (Ashley's  Life 
of  Palmerston,  vol.  I,  p.  20.) 
20 


306  INTERNATIONAL   POLICE 

Although  this  relationship  of  regional  control  has 
not  yet  received  that  formal  recognition  which  entitles 
it  to  rank  as  law,  it  is  so  generally  applied  in  practice 
as  to  approximate  law,  and  to  make  almost  certain  the 
attainment  of  that  status  in  the  not  distant  future.  For 
the  present,  in  international  practice,  whenever  it  is  a 
question  of  relations  with  a  state  within  a  regional  con- 
trol, it  is  important  to  remember: 

(1)  That  the  rule  of  noninterference  does  not  apply 
in  actual  practice  to  the  relations  between  the  para- 
mount state  and  its  wards  unless  due  allowance  is  made 
for  the  effect  of  this  regional  control. 

(2)  That  any  interference  by  a  third  state, — that  is 
a  state  outside  this  regional  control, — with  a  state  in- 
cluded therein  will  probably,  and  not  unreasonably,  be 
regarded  by  the  paramount  state  as  an  unjustifiable 
interference  with  its  vital  interests. 

(3)  That  notwithstanding  the  foregoing,  any  state 
may,  when  its  international  law  rights  are  denied,  pro- 
ceed against  the  delinquent  state  to  obtain  redress, 
provided  always  that  a  reasonable  opportunity  is  af- 
forded to  the  paramount  state  to  undertake  itself  the 
burden  of  exacting  on  the  part  of  its  ward  a  compli- 
ance with  its  international  obligations.    Whenever  the 
paramount  state  is  unwilling  or  unable  to  induce  its 
ward  to  fulfil  its  international  obligations,  the  injured 
state  may  interpose  directly  on  its  own  account. 

THE  EUROPEAN  CONCERT 

The  development  of  regional  control  or  hegemony 
of  a  great  power  is  the  natural  course  of  development, 
as  is  shown  by  the  position  of  the  United  States  on  the 
American  Continent,  and  of  Great  Britain,  France,  and 
Japan  in  Asia  and  in  parts  of  Africa.  Before  the  war, 
Germany  exercised  a  like  influence  over  certain  neigh- 


SUPERVISION  307 

boring  states.36  But  in  Europe  the  great  powers  have 
not  been  able  to  develop  this  particular  control  or  su- 
pervision over  smaller  and  more  backward  states  be- 
cause of  the  proximity  of  the  great  states  to  one  an- 
other, and  because  of  the  keen  rivalry  between  them.37 

The  balancing  of  rival  interests  which  has  blocked 
the  action  of  any  single  state  in  Europe  has  made  neces- 
sary combined  or  collective  intervention  for  the  regula- 


36See  Stowell :  Diplomacy  of  the  War  of  1914,  p.  496-502. 

"This  is  the  explanation  of  the  following  statement  from 

Lawrence :  " We  may,  therefore,  say  that  the  supremacy 

of  the  Great  Powers  is  felt  only  in  matters  which  are  connected 
more  or  less  intimately  with  European  politics,  though  they 
may  not  belong  geographically  to  Europe."  (Lawrence:  Es- 
says on  Some  Disputed  Questions  in  Modern  International 
Law,  p.  229.) 

Had  Holland  been  in  Asia  and  situated  near  a  state  like 
Germany,  it  would  have  fallen  under  German  control,  but  in 
Europe  Great  Britain  blocked  the  road.  It  was  natural  that 
the  Dutch,  in  the  conduct  of  their  foreign  affairs,  should  defer 
sufficiently  to  Great  Britain  to  sustain  British  interest  in  the 
continuance  of  Dutch  independence,  but,  if  Great  Britain  on 
her  part  should  presume  too  far  upon  this  deference,  the  gov- 
ernment of  the  Netherlands  corrected  this  excess  by  inclining 
toward  Germany.  By  a  similar  policy  of  balance,  other  small 
states  of  Europe  have  been  able  to  maintain  their  inde- 
pendence. They  escape  the  dictation  of  a  single  power,  and 
are  only  compelled  to  accept  the  decrees  of  the  powers  acting 
collectively.  The  position  of  Portugal  is  somewhat  anomalous, 
and  may  properly  be  classed  as  within  the  British  sphere  of  in- 
fluence. 

Professor  Edwin  D.  Dickinson,  in  his  remarkable  study 
entitled,  "The  Equality  of  States  in  International  Law,"  in 
the  course  of  his  discussion  of  the  action  of  the  European  Con- 
cert, comments  upon  the  status  of  Greece :  "  . . .  but  the  truth 
is  that  for  nearly  a  century  the  great  powers  have  governed 
the  affairs  of  Greece  in  a  series  of  conferences  in  which  that 
state  has  not  participated. "  (E.D.Dickinson:  The  Equality 
of  States,  p.  302.) 


308  INTERNATIONAL   POLICE 

tion  and  settlement  of  matters  of  common  concern.88 
The  most  powerful  states  have  found  it  expedient  or 
necessary  to  have  recourse  to  such  collective  action  so 
frequently  that  it  became  customary  to  speak  of  them 
in  their  collective  capacity  as  the  European  Concert.88 

In  the  Balkans  we  find  the  best  expression  of  this  con- 
certed action  of  the  European  powers  to  regulate  in- 

38" whereas  when  the  Great  Powers  guaranteed  the 

neutrality  of  Belgium,  they  fixed  the  international  status  of 
the  newly-created  kingdom,  and  made  its  neutralization  a 
principle  of  public  law.  The  consent  of  the  lesser  states  was 
not  asked ;  but  they  were  tacitly  assumed  to  be  bound  by  the 
acts  of  their  more  powerful  neighbors.  Similarly  in  such  mat- 
ters as  recognition  of  independence,  admission  of  another  state 
to  the  rank  of  a  Great  Power,  and  reception  of  a  semi-civilized 
state  into  the  family  of  nations,  the  Great  Powers  act  on  be- 
half of  others  as  well  as  themselves.  They  speak  in  the  name 
of  Europe,  and  bind  it  by  their  decisions. "  (Lawrence:  Es- 
says on  Some  Disputed  Questions  in  Modern  International 
Law,  p.  231-2.) 

Professor  Pillet,  discussing  the  fundamental  rights  of  states, 
recognizes  the  control  of  the  principal  powers  over  the  conduct 
of  international  affairs.  He  writes:  ''The  principal  states 
known  as  the  Great  Powers  have  acquired  the  direction  of  the 
important  interests  which  are  of  common  concern.  They  de- 
cide upon  the  improvements  to  be  made  in  the  positive  law  of 
nations,  they  regulate  the  affairs  which  are  of  general  inter- 
est, they  take  action  to  obviate  great  dangers  which  threaten 
them  all.  The  Great  Powers  have,  therefore,  an  evident  su- 
periority in  fact  which  tends  to  become  a  superiority  in  law, 
by  reason  of  the  continually  increasing  deference  with  which 
their  decisions  are  observed  by  the  states  concerned,  even 
though  they  might,  speaking  from  a  strictly  legal  viewpoint, 
disregard  decisions  in  regard  to  which  they  have  not  been  con- 
sulted. (Translated  from  Revue  generate  du  droit  interna- 
tional public,  Vol.  5,  p.  71.  Professor  Pillet  refers  to  Alfred 
Chretien,  Principes  de  droit  international  public,  p.  171.) 

Cf.  also  H.  von  Rotteck's  (Recht  der  Einmischung,  p.  95-6) 
interesting  remarks  about  the  role  of  the  European  Concert; 
Giinther  (Volkerrecht,  Vol.  I  (1787),  p.  296)  alludes  to  this 
right  of  action. 

39President  Wilson,  in  his  war  message  to  Congress  says: 
' '  A  steadfast  concert  for  peace  can  never  be  maintained  except 
by  a  partnership  of  democratic  nations. ' ' 


SUPERVISION  309 

ternational  affairs  and  to  prevent  the  outbreak  of  war 
with  its  menace  for  the  security  of  all  the  states.  For 
centuries  the  Turkish  Empire  had  been  disintegrating. 
Russia  and  Austria  were  gnawing  at  its  vitals.  Their 
procedure  was  to  defend  the  Christian  populations 
against  the  oppressions  of  the  Turks  and  to  seek  to  in- 
corporate them  within  their  own  empires,  but  the  other 
European  states,  who  were  not  willing  to  allow  this  in- 
crease of  power  to  Austria  and  Russia,  threw  their  in- 
fluence toward  the  preservation  of  the  Turkish  Empire, 
and,  when  this  was  impossible,  they  insisted  upon  the 
establishment  of  small  independent  states.40  For  many 


40Professor  Holland,  in  his  book,  The  European  Concert  in 
the  Eastern  Question,  has  collected  the  important  documents 
relative  to  this  matter,  and  supplied  brief  historical  introduc- 
tions. In  an  introductory  chapter,  he  says : 

' '  The  assumption  of  a  collective  authority  on  the  part  of  the 
powers  to  supervise  the  solution  of  the  Eastern  question — in 
other  words,  to  regulate  the  disintegration  of  Turkey — has 
been  gradual.  Such  an  authority  has  been  exercised  tenta- 
tively since  1826,  sj^stematically  since  1856.  It  has  been  ap- 
plied successively  to  Greece,  to  Egypt,  to  Syria,  to  the  Danu- 
bian  principalities  and  the  Balkan  peninsula  generally,  to  cer- 
tain other  of  the  European  provinces  of  Turkey,  to  the  Asiatic 
boundaries  of  Turkey  and  Russia,  and  to  the  treatment  of  the 
Armenians."  (Holland:  The  European  Concert  in  the  East- 
ern Question,  p.  2.) 

Another  writer,  F.  W.  Payn,  remarks:  "The  relation  of 
the  powers  at  the  Berlin  Conference  to  the  Petty  States  which 
they  then  called  into  existence  are  those  of  guardian  and  ward. 
'If  uncontrolled  by  Europe,  the  animosities  and  jealousies  of 
Greeks,  Bulgars,  Serbs,  and  Macedonians,  preventing  them 
from  acting  in  concert  and  leading  to  internecine  conflicts, 
might  quickly  lead  to  the  reimposition  of  the  Turkish  yoke 
upon  her  former  provinces  or  more  probably  to  an  inter- 
national conflict  for  the  partition  of  Turkey,  disturbing  the 
peace  of  the  world  and  fatal  to  the  independence  of  these  little 
States.'  '  (F.  W.  Payn:  Cromwell  on  Foreign  Affairs,  p. 
85.) 

Rolm-Jaequemyns,  in  his  study  of  the  oriental  question 
(Revue  de  droit  international  et  de  legislation  comparee,  Vol. 
8,  (1876),  p.  367-9)  recognized  the  right  and  the  obligation  of 


310  INTERNATIONAL   POLICE 

years  Great  Britain  protected  the  Turkish  Empire 
against  Austria  and  Russia  until  Germany  took  its 
place  and  pursued  a  similar  policy.  The  result  has 
been  to  place  Turkey  de  facto  in  the  position  of  a  ward 
of  Europe,  obliged  to  conform  to  the  will  of  a  European 
Concert  when  it  could  speak  with  the  force  based  upon 
the  agreement  of  the  great  powers,  but  when,  after  the 
dissolution  of  the  Dreibund,  or  Kaiserbund  (1888),  as 
it  was  sometimes  called,  Russia  and  Austria  became 
partisans  of  rival  political  systems  or  groups,  the 
powers  of  Europe  then  found  it  expedient  to  substitute 
for  the  previous  European  Concert  a  dual  control  in 
which  Austria  and  Russia  should  act  for  the  two  rival 
alliances  or  political  groups  of  Efurope.  The  other 
powers  counted  upon  this  machinery  to  maintain  the 
status  quo,  for  it  was  evident  that  these  antagonists 
could  not  agree  on  anything  except  it  were  a  measure 
necessary  to  prevent  war  or  to  protect  the  general  in- 
terests. 

Aside  from  the  rights  of  the  Concert  corresponding 
to  that  of  a  paramount  state  in  its  sphere  of  influence, 
the  European  Concert  has  an  added  authority  which 
comes  from  the  fact  that  its  action  is  collective.41 


the  European  powers  to  intervene  in  the  Balkans  to  protect 
the  inhabitants  from  Turkish  misrule. 

41When  action  is  collective,  the  overwhelming  force  back  of 
the  decision  gives  it  in  fact  a  deference  similar  to  a  precept 
of  law,  and  we  may  also  regard  the  nations  acting  collectively 
as  the  nations  in  conclave.  Now  a  conclave  of  the  nations 
has  always  been  recognized  as  the  means  of  defining  and 
enforcing  the  law  of  nations,  just  as  anciently  and  before  the 
development  of  more  permanent  and  more  highly  differen- 
tiated institutions,  the  gathering  of  the  people  interpreted 
the  law,  and  made  provision  for  its  execution.  Hall  recog- 
nizes (4th  ed.,  §  95,  p.  307),  that  "a  somewhat  wider  range  of 
intervention  than  that  which  is  possessed  by  individual  states 
may  perhaps  be  conceded  to  the  body  of  states,  or  to  some  of 
them  acting  for  the  whole  in  good  faith  with  sufficient 
warrant." 


SUPERVISION  311 

MANDATES 

Everyone  knows  the  elementary  principle  of  admin- 
istrative law  that  although  it  is  for  the  many  to  advise, 
performance  should  be  left  to  one,  and  the  Concert  of 
Europe  has  shown  a  tendency  to  conform  to  this  rule 
in  the  substitution  of  the  dual  Balkan  control  for  the 
old  Concert.  Following  along  this  same  line  of  rea- 
soning, France's  landing  troops  in  Syria  in  1860  has 
been  often  spoken  of  as  the  carrying  out  of  a  man- 
date from  Europe.42  The  victory  of  the  Allies  has  af- 
forded an  occasion  to  carry  this  idea  still  further,  and 
to  recognize  the  mandates  of  certain  powers  to  super- 
vise the  affairs  of  certain  designated  states  or  terri- 
tories. They  act  as  the  agents,  that  is  mandatories,  of 
the  collectivity  of  powers  making  the  assignment.43  It 


42See  R.  Robin:  Des  Occupations,  p.  281-5.  We  discuss 
this  incident  more  fully  below  §  8  (a). 

Because  France  was  the  tacit  mandatory  of  Europe,  Guizot 
was  justified  in  declaring:  "When  Charles  X,  in  1830,  de- 
clared hostilities  against  the  Dey  of  Algiers,  that  could  not 
be  called  on  our  part  a  defensive  war ;  yet  was  it,  nevertheless, 
legitimate.  In  addition  to  the  insult  we  had  to  revenge,  we 
also  satisfied  a  great  and  lawful  interest,  not  only  French,  but 
European,  by  delivering  the  Mediterranean  from  the  pirates 
who  had  infested  it  for  ages."  (Guizot,  Memoirs,  Translated 
by  J.  W.  Cole,  London,  1861,  Vol.  4,  p.  100.) 

Professor  Kebedgy  draws  a  distinction  between  action  as  a 
mandatory  and  the  ordinary  intervention  of  a  single  state.  A 
power  acting  in  the  capacity  of  a  mandatory — that  is  as  the 
delegate  of  the  powers  is,  he  says  permitted  to  act  ' '  only  with 
the  consent  of  the  others  and  within  the  limits  of  the  authori- 
zation. ' '  ( Translated  from  Kebedgy :  Intervention,  p.  82. ) 

43See  Article  22  of  the  Covenant  of  the  League  of  Nations, 
which  is  in  part  a  codification  of  principles  long  acted  upon. 
Cf.  Secretary  Colby's  note  to  Earl  Curzon  of  November  20, 
1920,  relative  to  the  British  mandate  over  the  Mesopotamian 
oil  fields  (published  in  the  press  November  26,  1920),  in 
which  he  speaks  of  "the  establishment  of  the  mandate  prin- 
ciple" as  "a  new  principle":  but  the  treaty  only  gives  a 


312  INTERNATIONAL   POLICE 

would,  perhaps,  be  accurate  to  say  as  the  mandatory  of 
Europe,  since  these  same  powers  exercise,  for  the  pres- 
ent at  least,  a  paramount  control  over  European  af- 
fairs. 

These  so-called  mandates,  if  prolonged  and  associ- 
ated with  a  particular  state  or  region,  would  approxi- 
mate the  regional  control  discussed  above,  and  to  the 
extent  of  the  terms  of  the  recognition  thereby  accord- 
ed, the  supervision  of  any  power  within  the  region  of 
its  control  now  exercised  de  facto  will  become  de  jure 
an  institution  of  the  public  law  of  nations.44 

verbal  recognition  to  an  institution  which  has  long  existed  in 
practice,  although  it  has  heretofore  been  an  expedient  of  a 
somewhat  exceptional  nature. 

A  few  other  instances  where  mandatory  is  used  in  this  sense 
are  Lawrence :  Some  Disputed  Questions  in  Modern  Interna- 
tional Law,  p.  230;  Hershey:  Principles  of  International 
Law,  p.  151. 

"Nevertheless,  mandates  may  be  assigned  for  the  control 
of  regions  which  have  hitherto  had  no  intimate  relationship 
with  the  paramount  or  trustee  state,  as  was  indicated  by  the 
offer  to  the  United  States  of  a  mandate  over  Armenia. 

President  Wilson  in  his  message  to  Congress,  May  24,  1920, 
advising  that  the  United  States  accept  the  proffered  mandate 
over  Armenia,  quoted  from  the  appeal  of  the  San  Remo  con- 
ference a  portion  which  dwells  upon  the  advantageous  posi- 
tion of  the  United  States  to  undertake  the  task  because  of  its 

disinterested  situation  ' ' because  they  believe, ' '  so  the 

appeal  read,  "that  the  appearance  on  the  scene  of  a  power 
emancipated  from  the  prepossessions  of  the  Old  World  will 
inspire  a  wider  confidence  and  afford  a  firmer  guarantee  for 
stability  in  the  future  than  would  the  selection  of  any  Euro- 
pean power."  (Congressional  Record,  May  24,  1920,  p. 
7533.) 

The  American  Military  Mission  to  Armenia,  known  as  the 
Harboard  Mission,  in  its  report  dated  October  16,  1919, 
gives  an  account  of  the  frightful  treatment  to  which  the 
Armenians  have  been  subjected,  and  considers  under  what 
conditions  one  of  the  great  powers  might  undertake  as  a 
mandatory  the  supervisory  control  of  the  country.  This  re- 
port contains  a  valuable  statement  of  the  nature  of  the  task, 
and  formulates  reasons  for  and  against  the  acceptance  by  the 


SUPERVISION  313 

The  exercise  by  a  great  state  of  police  and  super- 
visory powers  over  a  small  state  seems  at  first  appear- 
ance to  impinge  upon  the  equality  of  the  small  state, 
and  to  interfere  with  that  independence  to  which  it  is 
entitled  under  the  law  of  nations.  There  is,  however, 
no  violation  of  international  law  since  the  supervising 
state  can  only  use  its  authority  to  compel  the  super- 
vised state  to  fulfil  its  international  obligations.  Any 
supervisory  action  not  reasonably  necessary  to  this  end 
is  an  abuse  of  force,  and  is  not  rightly  classed  as  police 
or  supervisory  action.45 

The  state  may  be  worthy  of  respect  for  its  culture 
and  for  its  influence,  yet  lack  the  material  resources  or 
traits  of  character  necessary  to  enable  it  unaided  to 
discharge  its  international  obligations.  We  should 
recognize  that  the  state  supervised  may  possibly  be,  in 
certain  respects  at  least,  superior  to  the  supervising 
power.  In  any  event,  no  good  can  come  of  denying  the 
facts  of  international  relations  and  trying  to  sustain  a 
theoretical  equality  of  states  which  has  no  foundation 
in  practice  nor  in  law  when  the  true  principles  of  in- 
ternational law  are  correctly  understood  and  applied.46 

In  international  law,  rights  are  always  correlative 
with  duties,  and  no  state  can  expect  to  retain  the  right 


United  States  of  the  mandate,  should  it  be  offered.  In  the 
enumeration  of  the  motives  which  may  influence  this  country 
in  reaching  a  conclusion,  we  find  a  good  statement  of  certain 
of  the  motives  which  are  generally  present  and  often  potent 
to  induce  states  to  intervene  in  the  internal  affairs  of  other 
states. 

45In  the  case  of  mandates  under  the  Covenant  of  the  League 
of  Nations  Article  22  seeks  to  prevent  such  abuse  of  power 
by  the  requirement  that  "the  mandatory  shall  render  to  the 
Council  an  annual  report  in  reference  to  the  territory  com- 
mitted to  its  charge." 

46Dr.  T.  J.  Lawrence,  discussing  the  Concert  of  Europe, 
touches  upon  this  question : 


314  INTERNATIONAL  POLICE 

of  sovereign  decision,  called  independence,  when  by  its 
conduct  it  makes  clear  that  it  cannot  fulfil  the  inter- 


"If,  then,  the  principles  and  rules  of  the  law  of  nations 
are  really  to  be  deduced  from  the  practice  of  nations  when- 
ever that  practice  is  consistent  and  uniform,  it  is  time,  I 
think,  to  give  up  the  doctrine  of  equality  in  deference  to  the 
stern  logic  of  established  facts.  For  many  years  Europe  has 
been  working  around  again  to  the  old  notion  of  a  common 
superior,  not  indeed  a  Pope  or  an  Emperor,  but  a  Committee, 
a  body  of  representatives  of  her  leading  states.  During  the 
greater  part  of  the  present  century  England,  France,  Austria, 
Prussia  and  Russia,  have  exercised  a  kind  of  superintendence 
over  European  affairs  under  the  name  of  the  Great  Powers, 
and  in  1867  Italy  was  invited  to  join  them.  An  examination 
of  the  history  of  a  few  important  international  transactions 
will  show  the  growth  of  what  is  called  the  Concert  of  Europe, 
and  will  enable  us  to  discern  in  some  degree  the  nature  and 
limits  of  its  functions.  It  will  at  the  same  time  reveal  to  us 
a  difference  in  kind  as  well  as  in  degree  between  the  rights  of 
sovereign  states  under  modern  International  Law.  (T.  J. 
Lawrence :  Some  Disputed  Questions  in  Modern  International 
Law,  209-210.) 

G.  F.  de  Martens  (Precis,  §  119),  over  a  century  ago,  spoke 
"of  states  of  small  or  medium  size  which,  however  sovereign 
they  may  be  in  theory,  are  affected  in  their  freedom  to  enter 
into  agreements  out  of  regard  to  powers  that  keep  them  in  a 
very  real  dependence  while  they  preserve  the  outward  appear- 
ance of  a  formal  independence." 

Sheldon  Amos  refers  to  this  question  ' '  in  order, "  as  he  re- 
marks, "to  show  that  a  purely  legal  dogma  of  an  abstract 
equality  cannot  take  the  place  of  true  political  equality." 
(Remedies  for  War,  p.  63.) 

Westlake  remarks: 

"The  rights  of  equality  and  independence  are  often  reck- 
oned among  the  inherent  rights  of  states.  With  regard  to  the 
first,  semi-sovereign  or  dependent  states  are  manifestly  un- 
equal to  sovereign  or  independent  ones,  and  even  the  latter 
are  ranked  for  ceremonial  matters  in  an  order  of  precedence, 
while  it  is  not  pretended  that  they  are  or  ought  to  be  equal 
to  one  another  in  the  influence  which  accompanies  strength. 
Their  equality  consists  in  the  fact  that  in  the  received  prin- 
ciples and  rules  of  international  law,  other  than  those  of  a 
ceremonial  nature,  no  distinction  is  made  between  great  states 
and  small,  so  that  the  influence  of  strength  is  only  lawful 


SUPERVISION  315 

national  law  obligations  of  an  independent  and  sov- 
ereign state.    In  so  far  as  the  state  under  tutelage  is 


when  exerted  in  modes  which  the  right  of  self-defence  does 
not  authorize  those  on  which  it  is  exerted  to  resist.  Thus 
considered,  and  there  is  really  no  other  way  of  considering  it, 
the  equality  of  sovereign  states  is  merely  their  independence 
under  a  different  name."  (Westlake:  International  Law, 
Vol.  I,  p.  321.) 

The  recently  published  study  on  ''The  Equality  of  States 
in  International  Law/'  by  Professor  Edwin  D.  Dickinson  of 
the  University  of  Michigan,  has  given  us  a  thorough  and 
scientific  study  of  this  doctrine  of  equality.  This  is  a  work 
of  unusual  merit  and  is  almost  certain  to  correct  the  pre- 
vailing misconceptions  as  to  state  equality.  Mr.  Dickinson, 
in  his  conclusion,  writes : 

"The  principle  of  equality  has  an  important  legal  signifi- 
cance in  the  modern  law  of  nations.  It  is  the  expression  of  two 
important  legal  principles.  The  first  of  these  may  be  called 
the  equal  protection  of  the  law  or  equality  before  the  law. 
States  are  equal  before  the  law  when  they  are  equally  pro- 
tected in  the  enjoyment  of  their  rights  and  equally  compelled 
to  fulfil  their  obligations.  Equality  before  the  law  is  not 
inconsistent  with  the  grouping  of  states  into  classes  and  the 
attributing  to  the  members  of  each  class  of  a  status  which  is 
the  measure  of  capacity  for  rights.  Neither  is  it  inconsistent 
with  inequalities  of  representation,  voting  power,  and  con- 
tribution in  international  organizations.  The  second  prin- 
ciple is  usually  described  as  equality  of  rights  and  obligations 
or  more  often  as  equality  of  rights.  The  description  is  a 
heritage  from  theories  of  natural  law  and  natural  right. 
What  is  really  meant  is  an  equality  of  capacity  for  rights. 
Equality  in  this  sense  is  the  negation  of  status.  If  applied 
without  qualification  in  international  organizations  it  requires 
equal  representation,  voting  power,  and  contribution. 
Equality  before  the  law  is  absolutely  essential  to  a  stable 
society  of  nations.  If  it  is  denied  the  alternatives  are  uni- 
versal empire  or  universal  anarchy.  Equality  of  capacity 
for  rights,  on  the  other  hand,  is  not  essential  to  the  reign  of 
law.  Strictly  speaking,  it  has  never  been  anything  more  than 
an  ideal  in  any  system  of  law.  Among  states,  where  there  is 
such  an  utter  want  of  homogeneity  in  the  physical  bases  for 
separate  existence,  there  are  important  limitations  upon  its 
utility  even  as  an  ideal. "  (Dickinson :  The  Equality  of  States 
in  International  Law,  pp.  334-5.) 


316  INTERNATIONAL   POLICE 

able  to  fulfil  its  duties,  let  it  lay  claim  to  exercise  the 
corresponding  attributes  of  independence,  and  let  the 
trustee  state,  supported  by  the  public  opinion  of  the 
other  states,  and  if  need  be  by  their  intervention,  hasten 
to  help  and  not  to  retard  this  progress  toward  full  in- 
dependence and  sovereign  statehood.  When  a  state 
ignores  its  obligations,  be  it  in  even  an  isolated  in- 
stance, it  is  liable  to  encounter  the  interposition  of  the 
state  it  has  wronged,  or  the  intervention  of  other  states 
who  perceive  that  such  conduct  constitutes  an  assaalt 
upon  the  principles  sacred  to  them  all,  and  necessary 
to  the  preservation  of  international  society.  So  re- 
garded, all  justifiable  intervention  is  a  case  of  super- 
vision instituted  for  the  governance  of  a  particular 
matter.  In  the  succeeding  sections,  we  shall  examine 
the  occasions  in  which  such  intervention  is  justifiable. 


CHAPTER  HI 

NON-INTERFERENCE 

§  11.    INTERFERENCE 

We  have  seen  that  there  are  certain  cases  when  a 
state  is  warranted  in  using  force,  either  to  secure  re- 
dress for  an  injury,  or  to  protect  international  society 
by  enforcing  respect  for  law  and  by  preventing  the 
abuse  of  a  right.  Such  instances  of  intervention  are  of 
frequent  occurrence,  but  we  have  still  to  examine  cer- 
tain other  instances  before  we  shall  be  in  a  position  to 
decide  whether  the  grounds  upon  which  recourse  to 
force  is  defended  are  to  be  condemned  as  unjustifiable 
interference.  Interference  as  between  states  may  be  de- 
fined as  the  unwarranted  reliance  upon  force  to  con- 
strain an  independent  state  to  adopt  or  to  refrain  from 
a  particular  course  of  action. 

Since  interference  may  result  from  menace  as  well  as 
from  the  employment  of  actual  force,  it  is  important  to 
distinguish  between  counsel  offered  in  a  friendly  spirit, 
and  similar  ' '  advice ' '  which  carries  with  it  a  threat  of 
execution  by  force.47  This  distinction  gives  us  no  diffi- 
culty. It  is  only  necessary  to  bear  in  mind  that  whether 


47The  same  distinction  based  upon  the  absence  of  constraint 
hold  as  regards  intercession,  good  offices,  and  mediation,  the 
consideration  of  which  must  be  reserved  for  a  later  volume 
on  the  procedure  for  the  settlement  of  international  con- 
troversies. 

Westlake  remarks :  " the  tender  of  advice  to  a  foreign 

government,  even  about  the  internal  affairs  of  its  state,  is  not 

317 


318  NON-INTERFERENCE 

force  is  actually  used  or  not,  there  is  interference  when- 
ever an  independent  state  is  in  fact  restrained  from 
the  free  exercise  of  its  sovereign  rights  under  inter- 
national law  by  an  intimation,  however  covert,  of  an 
intention  to  employ  force  to  influence  its  action.48 


intervention  and  violates  no  right,  though  it  is  generally 
injudicious.  Statesmen  must  remember  that  though  govern- 
ments and  states  are  different,  and  it  is  to  states  that  the  rights 
given  by  international  law  belong,  yet  it  is  governments  that 
they  have  to  live  with  and  whose  susceptibilities  they  will 
therefore  find  it  needful  to  consult."  (Westlake:  Interna- 
tional Law,  Vol.  I,  p.  320-321.) 

"Usually  the  intimation  is  not  given  in  so  crude  a  form  as 
to  amount  to  a  threat  of  force.  A  word  to  wise  governments 
is  sufficient,  and  from  even  the  slightest  hint,  a  small  state 
understands  what  its  greater  neighbor  wishes.  A  refusal  to 
acquiesce  will  bring  into  play  against  it  the  wide  reaching 
influence  of  the  great  state,  and  unless  the  smaller  state  can 
counter  by  some  retaliatory  action  sufficiently  important  to 
act  as  a  deterrent,  it  must  expect  to  feel  the  full  weight  of 
the  great  state's  hostility  exercised  in  a  peaceful  but  un- 
friendly manner.  The  consequences  may  be  very  disastrous 
to  the  small  state.  The  smaller  state  usually  yields  perforce 
to  the  dictation  of  the  greater,  and  avoids  the  disagreeable 
consequences  which  would  result  from  an  insistence  upon  its 
rights.  We  have  then  a  veritable  instance  of  interference, 
but  it  is  one  which  neither  of  the  states  concerned  cares  to 
proclaim  as  such. 

The  essential  object  of  investigation  in  any  instance  ought 
to  be  to  discover  whether  an  undue  influence  has  been  exerted 
upon  the  government  to  induce  it  to  adopt  a  desired  course 
in  such  a  manner  as  really  to  affect  its  freedom  of  action. 

The  mere  fact  that  a  particular  course  is  adopted  by  a 
small  state  from  fear  that  otherwise  the  great  neighbor  will 
make  it  suffer  does  not  constitute  an  act  of  interference  unless 
the  great  state  has  given  an  intimation  or  warning  which 
thereby  attaches  to  the  act  a  greater  certainty  of  a  disagree- 
able consequence. 

The  anticipation  that  the  greater  state  may  use  force  is  the 
ordinary  condition  of  interstate  life,  but  an  intimation  to 
the  effect  that  force  will  be  used  is  an  attempt  to  control  the 
weaker  state  by  duress.  Should  an  intimation  be  disregarded 


INTERFERENCE  319 

In  discussing  interference,  the  writers  generally  con- 
fine themselves  to  internal  affairs,  but  there  would  seem 


under  such  circumstances,  it  is  almost  certain  that  the  inter- 
fering state  will  make  an  especial  effort  to  let  the  other  state 
pay  the  penalty  of  its  temerity. 

Halleck  perceives  that  a  menace  of  force  may  constitute 
an  interference.  He  says:  " Armed  intervention,  [i.  e., 
forcible  interference]  on  the  contrary,  consists  in  threatened 
or  actual  force,  employed,  or  to  be  employed,  by  one  state  in 
regulating  or  determining  the  conduct  or  affairs  of  another." 
(Halleck:  International  Law,  ch  XIV,  §  12,  p.  335.) 

But  so  keen  an  observer  as  Stapleton  would  make  the 
actual  employment  of  force  the  criterion  of  interference. 
This  is  to  confuse  the  means  with  the  purpose,  as  so  frequently 
occurs.  He  says: 

''Of  all  the  principles  in  the  code  of  international  law,  the 
most  important — the  one  on  which  the  independent  existence 
of  all  weaker  states  must  depend — is  this :  No  state  has  a  right 
FORCIBLY  to  interfere  in  the  internal  concerns  of  another 
state,  unless  there  exists  a  casus  belli  against  it.  For,  if  every 
powerful  state  has  a  right  at  its  pleasure  forcibly  to  interfere 
with  the  affairs  of  its  weaker  neighbors,  it  is  obvious  no  weak 
state  can  be  really  independent.  The  constant  and  general 
violation  of  this  law  would  be,  in  fact,  to  establish  the  law 
of  the  strongest. 

"This  principle  as  here  laid  down  is  the  true  principle  of 
'non-intervention'  [non-interference].  But  by  leaving  out 
the  word  forcible,  and  by  then  applying  it,  without  limitation 
or  explanation,  much  confusion  respecting  it  has  arisen. 

"It  is  essential,  therefore,  that  it  should  be  correctly  de- 
fined; for,  taking  it  in  the  broad  sense  in  which  it  is  some- 
times taken,  as  forbidding  all  kinds  of  intervention  [interfer- 
ence] in  the  internal  affairs  of  neighboring  states,  it  is  neither 
defensible  in  theory  nor  harmless  in  practice."  (A.  G. 
Stapleton :  Intervention  and  Non-intervention,  London,  1866, 
p.  6.) 

Professor  Kebedgy  (Intervention,  p.  9)  with  a  similar  opin- 
ion, quotes  Kant's  Essay  on  Perpetual  Peace  to  the  effect 
that:  "No  state  should  forcibly  mix  in  the  constitution  and 
government  of  another  state." 

As  regards  the  statement  that  the  actual  use  of  force  is  not 
an  essental  idea  of  interference,  we  cannot  do  better  than 
quote  Sir  Robert  Morier's  answer  to  the  Duke  of  Cambridge, 


320  NON-INTERFERENCE 

to  be  no  sufficient  reason  for  insisting  upon  this  limita- 
tion.49 No  doubt  interference  in  international  affairs 
is  generally  a  more  serious  offense,  and  will  be  found 


who  did  not  see  how  Great  Britain  could  intervene  to  stop 
the  Franco-German  war  without  an  army:  "I  ventured  to 
observe  that  there  were  certain  moves  on  the  political  chess- 
board which  necessarily  led  to  checkmate,  and  that  good 
players  did  not  go  on  playing  after  these  were  executed." 
(Memoirs  of  Sir  Robert  Morier,  II,  153.) 

Russia  interfered  at  Olmiitz  (1850)  just  as  surely  as  if 
force  had  been  employed.  France,  Germany  and  Russia 
interfered  between  Japan  and  China  in  1896,  just  as  surely 
as  if  the  ships  of  war  assembled  in  Chinese  waters  had  belched 
forth  their  fire. 

Pellegrino  Rossi  states  this  principle  clearly,  although  his 
definition  of  interference  is  restricted  to  internal  affairs,  and 
does  not  include  intermeddling  in  foreign  relations.  He  says, 
"There  is  said  to  be  intervention  [interference]  when  a  state 
mixes  in  the  internal  affairs  of  another  state  for  the  purpose 
of  modifying  its  political  system.  That  the  intervening 
[interfering]  state  acts  through  menace,  through  invasion,  or 
through  any  other  means  of  constraint,  and  whether  upon  its 
own  initiative,  or  upon  the  request  of  one  of  the  parties  that 
divide  the  state  where  the  intervention  [interference]  takes 
place,  is  of  slight  importance."  (Translated  from  Rossi's 
article  on  Intervention  in  Archives  de  droit  et  de  legislation, 
Vol.  I,  (1837),  p.  357.) 

Frederick  de  Martens  says:  "Intervention  [interference] 
takes  place  by  means  of  diplomatic  notes  or  by  force  of  arms ' ' 
(Bergbohm's  German  Edition,  Vol.  I,  p.  299). 

De  Floeckher  writes:  "Intervention  [interference]  exists 
from  the  moment  that  notice  of  the  demand  is  given  to  the 
state  upon  which  it  is  made,  and  it  is  not  necessary  that  it  be 
enforced  for  the  state  often  yields  to  the  pressure  brought  to 
bear  upon  it."  (de  Floeckher:  Intervention,  p.  4,  cf.  also 
Geffcken  in  Holtzendorff's  Handbuch,  Vol.  IV,  p.  131-2.) 

Professor  Berner  also  perceives  that  the  actual  use  of  force 
is  not  essential  to  constitute  intervention.  (Berner  article  on 
Intervention  in  the  Deutsches  Staats-Worterbuch  (1861),  Vol. 
V,  p.  341.) 

49Some  of  those  who  limit  intervention  to  internal  affairs  are 
Rossi:  Intervention,  Archives  de  droit,  (1837),  p.  357;  H. 
von  Rotteck :  Recht  der  Einmischung,  1845,  p.  17 ;  Bernard : 
Intervention,  1860,  p.  1 ;  Carnazza  Amari ;  Non-intervention, 


INTERFERENCE  321 

to  be  less  frequently  extenuated  by  circumstances. 
Nevertheless,  the  use  of  force  or  the  reliance  thereon 
to  dictate  a  sovereign  state's  conduct  of  foreign  af- 
fairs is  just  as  certainly  an  act  of  interference.  Inter- 
ference abroad,  equally  with  interference  at  home, 
hinders  a  state  in  the  exercise  of  the  rights  which  be- 
long to  it  by  virtue  of  its  sovereignty,  independence, 
and  equality. 

It  follows  then  that  non-interference  in  foreign  as 
well  as  internal  affairs  is  the  correct  rule  of  state  con- 
duct. But  no  state  has  a  right  to  make  an  abusive  use 
of  its  independence  and  to  insist  that  it  may  pursue  its 
selfish  course  without  regard  to  the  consequences  for 
its  neighbors.  International  law,  guided  by  the  experi- 
ence and  practice  of  states,  has  qualified  the  general 
rule  of  non-interference  to  admit  certain  other  grounds 
of  intervention  which  have  been  recognized  as  justi- 
fiable and  more  worthy  of  consideration  than  would  be 
an  insistence  upon  pushing  to  an  abusive  extreme  the 
right  of  unrestricted  independence  of  action  in  the  con- 
duct of  a  state  *s  internal  and  external  affairs. 

In  the  following  sections,  we  shall  now  consider  the 
various  grounds  upon  which  states  justify  their  en- 
croachments upon  the  independence  of  their  neighbors, 
and  we  shall  be  particularly  interested  to  define  any  of 
these  grounds  of  action  before  which  the  rule  of  non- 
interference gives  way  to  recognize  a  just  ground  of 
intervention. 


in  the  Revue  de  droit  internatioml  (1873),  Vol.  V,  p.  353; 
Rougier :  Les  Guerres  Civiles,  1903,  p.  328. 

Among  the  authorities  who  expressly  include  external  af- 
fairs as  well  as  internal  are  Vidari:    Intervento,  1868,  p.  5; 
Kebedgy:   Intervention,  1890,  p.  37;   The  Standard  Diction- 
ary;   Cavalieri:   Intervento,  1913,  p.  8. 
21 


322  NON-INTERFERENCE 

§  12.    VIOLATION  OF  SOVEREIGNTY 

Without  attempting  to  exercise  constraint,  a  state 
will  sometimes  attempt  to  perform  within  the  juris- 
diction of  another  state  acts  of  sovereignty,  that  is  acts 
of  authority  which  may  under  international  law  be  per- 
formed only  by  the  local  sovereign.50  Within  another's 
jurisdiction,  no  state  may  perform  any  acts  of  authori- 
ty unless  permission  has  either  been  given  by  the  local 
sovereign,  or  derived  from  some  undisputed  principle 
of  international  law.  The  performance  of  any  act  of 
authority  constitutes  a  violation  of  sovereignty,  and  is 
an  offense  which  no  really  independent  self-respecting 
state  will  tolerate.51 

There  is  a  similar  violation  of  sovereignty  if  a  state 
attempts  through  penal  enactments  to  compel  indi- 
viduals, while  outside  its  own  jurisdiction,  to  obey  its 
commands  in  disrespect  of  the  provisions  of  the  local 
law  wherever  they  may  be.  These  two  classes  of  in- 
stances are  sometimes  spoken  of  as  acts  of  interfer- 
ence, but  they  are  not  the  same  as  the  other  acts  of  inter- 
ference discussed  in  the  preceding  section.  For  the  of- 
fended sovereign  is  not  constrained,  but  insulted,  and 
immediately  demands  redress  for  the  injury.  If  it 
should  happen  that  the  injured  state  meekly  accepts 
the  insult,  then  the  violation  of  sovereignty  merges  into 


50The  action  we  are  discussing  does  not  include  what  we 
have  called  self-help  (see  above  §  1),  for  self-help  is  really 
cooperation. 

51As  examples  of  violations  of  sovereignty  which  are  cur- 
rently spoken  of  as  interference,  we  may  take  the  case  of 
Crampton,  the  British  Minister  in  the  United  States,  who,  at 
the  time  of  the  Crimean  War,  was  given  his  passports  for 
violating  American  neutrality  and  sovereignty  in  inducing 
recruits  to  proceed  to  Canada  for  enlistment  in  the  war 
against  Russia.  (See  Crampton 's  Case,  Stowell  and  Munro: 
International  Cases,  Vol.  II,  pp.  278-285.) 


VIOLATION  OF  SOVEREIGNTY  323 

interference,  for  we  may  consider  that  it  is  virtually 
constraint  that  causes  the  injured  state  to  forego  its 
demand  for  redress. 

There  are  other  acts  somewhat  analogous,  although 
they  cannot  be  classed  as  violations  of  sovereignty, 
as  when,  for  example,  foreign  representatives  try  to 
exert  an  indirect  influence  upon  the  government  to 
which  they  are  accredited,  in  order  to  induce  it  to  con- 
form to  some  desired  policy.  This  may  be  done 
through  the  medium  of  the  press,  or  through  individu- 
als of  influence  in  government  circles.  There  is  also 
said  to  be  interference  when  the  agents  of  a  foreign 
government  pass  over  the  heads  of  those  with  whom 
they  are  expected  to  negotiate  in  an  attempt  to  bring 
pressure  to  bear  upon  the  government  to  induce  it  to 
conform  to  their  wishes. 

This  indirect  influence  is  always  resented  by  the  gov- 
ernment against  which  it  is  directed,  even  when  it  does 
not  consider  that  the  mano3uvre  has  been  successful, 
and  by  general  agreement,  the  rules  of  international 
law  and  diplomatic  intercourse  have  come  to  set  bounds 
to  the  political  activity  of  foreign  agents.  To  overstep 
them  is  to  be  guilty  of  a  disrespect  to  the  local  sov- 
ereign and  in  a  lesser  degree  to  commit  an  infraction 
of  its  sovereign  rights.52  A  good  name  for  these  lesser 
infractions  would  be  "contempt  of  sovereignty."53 


"Another  British  Minister,  Lord  Sackville  West,  in  1888 
was  peremptorily  dismissed  by  Grover  Cleveland  because  he 
was  shown  to  have  advised  a  correspondent,  supposedly  of 
British  origin,  to  vote  for  the  reelection  of  Cleveland. 
(Stowell  and  Munro:  International  Cases,  Vol.  1,  p.  10.) 
Such  a  serious  transgression  as  this  was  a  violation  of  interna- 
tional law,  and  not  merely  a  disregard  of  international  comity 
or  courtesy. 

58 An  illustration  of  such  violation  or  contempt  of  the 
sovereign  authority  of  the  receiving  state  was  the  action  of 
Ambassador  Bernstorff,  or  his  agents,  in  publishing  a  warning 


324  NON-INTERFERENCE 

Even  though  there  be  no  use  of  force  in  those  in- 
stances of  interference  which  constitute  a  disregard  or 
disrespect  of  sovereignty,  there  is  an  insult  which  un- 
less it  be  redressed,  will  lessen  the  respect,  and  hence 
the  independence  and  equality  of  the  state  in  question. 
A  self-respecting  state  will  not  willingly  submit  to  such 
treatment,  and  constraint  only  can  explain  the  sub- 
mission of  a  state  which  is  willing  to  purchase  safety 
at  the  expense  of  its  honor. 

Another  less  flagrant  incident  of  such  disrespect  was 
recently  reported  in  the  press:  Dr.  Julio  Bianchi, 
Minister  of  Guatemala,  called  upon  Senator  Moses,  a 
member  of  the  Foreign  Relations  Committee  in  refer- 
ence to  a  Senate  resolution  "asking  the  State  Depart- 
ment to  explain  this  [U.  S.]  government's  attitude 
towards  the  treatment  accorded  former  President  Es- 
trada Cabrera  of  Guatemala  by  the  new  government  in 
the  Central  American  republic."  (New  York  Times, 
Dec.  12, 1920,  p.  14.)  Shortly  thereafter,  in  a  communi- 
cation to  the  Department  of  State,  Minister  Bianchi  of- 
fered an  explanation  of  his  conduct,  and  added  "that 
he  regretted  the  incident,  and  promised  that  it  would 
not  be  repeated. ' '  (New  York  Times,  Dec.  24, 1920.) 

A  similar  incident  to  the  above  occurred  about  this 
same  time.  The  first  Secretary  of  the  British  Em- 
bassy, during  the  illness  of  the  Ambassador,  dis- 
patched directly  to  the  Chairman  of  the  Senate  Com- 
mittee investigating  cable  communication  "a  denial  of 
the  testimony  given  by  a  witness  before  the  committee 
that  the  British  Government  censored  cable  messages 
to  the  United  States  from  Great  Britain. ' '  (New  York 


in  the  newspapers,  advising  passengers  not  to  embark  upon 
the  Lusitania.  Of  course  such  a  warning  could  properly 
emanate  from  no  government  but  that  of  the  United  States. 
It  does  not  benefit  the  cause  of  peace  or  national  honor  to 
tolerate  such  conduct  on  the  part  of  a  foreign  diplomat. 


VIOLATION  OF  SOVEREIGNTY  325 

Times,  Dec.  24,  1920;  Of.  Washington  Star,  Dec.  23, 
1920;  Washington  Post,  Dec.  26,  1920.)  To  judge  by 
the  statements  in  the  press,  the  State  Department  con- 
sidered it  necessary  to  notice  these  departures  from  the 
usual  procedure  of  diplomatic  intercourse. 

Governments  are  particularly  sensitive  to  any  re- 
marks made  in  regard  to  political  matters  under  dis- 
cussion in  the  legislature.  It  is  evident  that  a  foreign 
representative  must  be  allowed  to  communicate  po- 
litely and  discreetly  to  the  minister  of  foreign  affairs 
the  consequences  which  he  believes  will  result  from  the 
adoption  of  the  proposed  measure  but  he  must  not  go 
one  step  further  and  state  what  his  government  will 
do,  or  give  publicity  to  his  views,  for  he  then  attempts 
either  to  impose  the  views  of  his  own  government,  or 
he  usurps  advisory  functions  in  the  place  of  the  con- 
stituted authorities.  Professor  Moore  states  this  well 
recognized  rule:  "It  is  not  permissible  for  one  sov- 
ereign to  address  another  sovereign  on  political  ques- 
tions pending  in  the  latter 's  domains,  unless  invited  to 
do  so."54  (Digest,  VI:  5.) 


"Col.  Repington  relates  the  incident  of  the  former  Kaiser's 
letter  to  Lord  Tweedmouth,  dated  February  2,  1908,  in  which 
William  II  tried  to  allay  the  apprehension  caused  Great 
Britain  by  Germany 's  naval  plans.  Col.  Repington  was  prob- 
ably justified  in  considering  this  as  an  attempt  to  influence 
in  German  interest  a  British  Minister  at  a  most  critical 
moment  before  the  estimates  for  the  Navy  were  coming  on  in 
Parliament.  The  Kaiser's  action  was  severely  criticized  in 
the  Times,  but  the  English  press  in  general  seems  to  have  been 
inclined  to  minimize  the  matter.  (Col.  Charles  A.  Repington: 
Vestigia,  London,  1919,  p.  284-292.) 

The  same  writer  tells  how,  because  he  criticized  certain  well- 
known  defects  of  the  German  Army,  the  Kaiser,  ' '  ordered  his 
new  Ambassador,  Baron  Marschall  von  Bieberstein,  to  see 
Colonel  Seely,  then  Secretary  of  War,  and  to  demand  my 
dismissal  from  the  position  of  editor"  of  The  Army  Review, 
an  organ  of  the  British  General  Staff.  "The  Ambassador," 
writes  Col.  Repington,  "received  a  very  crisp  answer  for  his 


326  NON-INTERFERENCE 

After  Viscount  Grey  returned  from  his  mission  to 
the  United  States,  he  published  a  letter  in  the  London 
Times  in  which  he  discussed  the  ratification  of  the 
League  of  Nations  Covenant.  He  explained  the  con- 
stitutional functions  of  the  Senate  in  regard  to  treaties 
and  the  reason  for  the  opposition  to  certain  provisions 
of  the  League  Covenant,  and  he  lent  his  support  in 
favor  of  certain  modifications  to  meet  these  objections. 
Now  President  Wilson  had  been  insisting  that  there 
must  be  no  modification  of  the  articles,  and  Lord 
Grey's  letter  could  not  help  annoying  him,  but  there 
was  absolutely  no  possible  ground  upon  which  to  base 
a  complaint.  Lord  Grey  had  done  no  more  than  ex- 
plain informally  for  the  British  public  what  it  was 
right  that  they  should  be  told.  If  the  real  purport  was 
to  inform  the  Senate  that  the  British  Government  was 
less  insistent  upon  an  unamended  treaty  than  was 
President  Wilson,  it  was  an  able  piece  of  diplomacy, 
a  worthy  example  of  the  art.  (See  press  reports :  Feb. 
6,  1920.) 

The  Sun  and  New  York  Herald  (Feb.  6,  1920)  gives 
the  following  interviews  with  Senator  Hitchcock, 
Chairman  of  the  Senate  Foreign  Relations  Committee, 
and  generally  regarded  as  President  Wilson's  spokes- 
man: 

1  *  Senator  Hitchcock  insisted  the  Grey  letter  has  been 
greatly  overrated  as  to  its  importance  and  effect  on 
the  Senate  situation.  He  issued  a  call  for  a  conference 
of  Democrats  friendly  to  ratification  to  be  held  Satur- 
day afternoon. 

impudence,  but  never  knew  how  he  had  scored  off  me.  My 
intention  had  been  to  give  up  this  work  when  the  Staff  journal 
was  in  going  order,  and  as  this  moment  had  come  I  wished  to 
pass  on  the  work  to  some  one  else.  But  it  was  impracticable 
for  Colonel  Seely  or  for  me  to  submit  to  German  dictation, 
and  therefore  I  had  to  remain  on  for  six  months  or  so,  much 
against  my  will." 


VIOLATION  OF  SOVEREIGNTY  327 

"Admitting  that  he  had  received  a  number  of  com- 
munications from  the  White  House,  Senator  Hitch- 
cock said  none  had  borne  on  the  general  proposition  of 
the  treaty. 

"  'Has  there  been  any  change  in  the  President's  at- 
titude?' he  was  asked. 

"  'I  do  not  think  I  can  tell  you  that,'  was  the  reply. 
'But  I  do  not  think  the  Grey  letter  will  have  much 
effect.  It  may  affect  the  men  who  have  thought  the 
Allies  would  reject  the  treaty  if  we  attached  the  Lodge 
reservations  to  it,  but  I  never  have  believed  they  would 
object  if  we  left  the  reservation  subject  to  acceptance 
by  acquiescence.  There  would  have  been  danger  if  we 
had  left  in  the  preamble  the  requirement  that  the  reser- 
vations be  accepted  in  writing. 

"  'The  Grey  letter  seems  to  have  been  written  for 
several  purposes.  One  was  to  allay  the  feeling  in 
Great  Britain  against  the  United  States.  Another  was 
to  help  procure  ratification  here  by  making  clear  that 
Britain  had  no  objection  to  the  Lodge  reservations. 
Nearly  everybody  had  understood  that. 

"  'Before  he  left  Washington  I  talked  with  Lord 
Grey  and  learned  that  his  government  did  not  seek  six 
votes  for  the  Empire  and  had  little  concern  about 
them ;  but  the  British  Government  felt  it  would  be  em- 
barrassed in  its  relations  with  the  colonies  and  domin- 
ions if.  they  were  disfranchised.  To  declare  that 
America  would  not  be  bound  by  any  decision  in  which 
it  took  part  would  be  equivalent  to  disfranchisement. 
I  do  not  think  Britain  is  concerned  how  many  votes  we 
have,  but  she  does  object  to  depriving  her  dominions  of 
their  votes. 

' '  '  Publication  of  the  Grey  letter  in  the  press  was  an 
extraordinary  proceeding  for  a  government  official. 
He  could  not  do  it  here  and  he  did  it  for  a  purpose.  It 
seems  to  have  been  intended  to  placate  British  feelings 


328  NON-INTERFERENCE 

against  the  United  States  and  I  do  not  regard  it  as  a 
discourteous  act.  Lord  Grey  observed  every  propriety 
while  here. ' 

The  New  York  Times  (February  6,  1920),  states: 

"The  one  definite  conclusion  obtained  from  the 
White  House  announcement  of  to-day  was  that  officials 
close  to  the  President  feel  that  Lord  Grey,  who  still 
holds  the  rank  of  Special  Ambassador  to  the  United 
States,  although  he  has  returned  to  London,  adopted 
a  rather  exceptional  course  in  publicly  expressing 
views  which  he  must  have  known  were  in  entire  discord 
with  the  public  utterances  of  the  President  in  regard  to 
the  treaty  situation. 

1  *  The  fact  that  Lord  Grey,  in  his  letter  to  the  London 
Times,  states  that  he  spoke  as  an  individual  and  not  in 
the  role  of  representative  of  his  Government,  has  not 
been  looked  upon  as  materially  changing  the  situation 
developed,  especially  in  view  of  the  fact  that,  as  pub- 
lished in  the  New  York  Times  on  Monday,  he  showed 
to  more  than  one  Senator,  during  his  visit  here,  a  cable- 
gram from  Premier  Lloyd  George  in  which  the  latter 
stated  that  the  Lodge  reservations  were  satisfactory, 
and  that  England  wanted  the  United  States  to  enter 
the  League  of  Nations. 

"The  publication  of  this  information  by  the  New 
York  Times  has  attracted  almost  as  much  interest  as 
the  Grey  communication  to  the  London  Times  itself. 
There  has  been  no  effort  to  deny  that  such  a  cablegram 
existed  and  made  its  appearance  in  Washington  at 
some  of  the  conferences  which  Lord  Grey  held  with 
Republican  and  Democratic  Senators.  In  fact,  several 
Senators  have  admitted  either  seeing  or  hearing  of  the 
cablegram  and  Senator  Borah  has  had  his  version  of 
the  text  of  the  now  famous  message  included  in  the 
Congressional  Record  as  part  of  an  address  attacking 
the  League.'* 


ASSISTANCE  329 

§  13.    ASSISTANCE 

The  efficacy  of  international  society  is,  as  we  have 
seen,  dependent  upon  the  cooperation  by  the  states 
whenever  such  cooperation  is  required  to  preserve  the 
existence  of  a  member  state  or  to  enable  its  government 
to  fulfil  its  obligations  under  international  law.  It  is 
not  to  be  expected  that  any  state  will  expend  in  this 
cooperation  so  great  a  portion  of  its  resources  as  to 
endanger  its  own  security  or  to  prove  an  intolerable 
burden.  The  amount  of  the  sacrifice  which  the  cooper- 
ating state  will  make  for  this  purpose  will  depend  part- 
ly upon  the  benefits  which  it  expects  ultimately  to  de- 
rive from  its  effort,  and  partly  upon  its  regard  for  the 
common  good.  The  hope  of  enjoying  a  similar  benefit 
when  the  circumstances  are  reversed  also  enters  into 
the  calculation.  Reasoning  a  priori  from  this  indis- 
putable premise,  international  law  would  appear  to 
justify  states  in  coming  to  the  assistance  of  a  sister 
state  to  help  it  to  suppress  rebellion  and  preserve  its 
orderly  life.  History  affords  us  many  precedents  and 
certain  of  the  older  authorities  also  support  this  view.55 


55"It  was  customary,"  writes  Rougier,  "in  the  16th  and 
17th  centuries  to  stipulate  in  peace  treaties  that  in  the  event 
that  one  of  the  contracting  states  should  find  itself  involved 
in  a  rebellion,  the  other  states  would  refuse  to  the  insurgents 
every  manner  of  succor ;  cease  all  commerce  with  them ;  and 
deliver  them  into  the  hands  of  their  sovereign. "  (A.  Rougier : 
Guerres  civiles,  p.  374 ;  refers  to  De  Olivart :  Del  reconocim- 
iento  de  belligerancia  y  sus  effectos  immediatos,  Madrid, 
1895,  p.  4;  for  interesting  details  relative  to  the  Anglo- 
Spanish  treaty  of  November  15,  1630,  and  the  Franco-Spanish 
treaty,  Pyrenees,  1659.) 

As  similar  in  principle,  we  may  refer  to  the  treaty  of  March 
15,  1834,  between  Austria,  Prussia  and  Russia  for  the  ex- 
tradition of  political  offenders,  including  those  who  had  risen 
against  their  governments.  (British  State  Papers,  vol.  53, 
1862-3,  p.  872-3;  cf.  ibid,  p.  871-2.) 


330  NON-INTERFERENCE 

Even  as  late  as  1860,  Theodore  D.  Woolsey,  whose 
opinions  are  still  highly  esteemed,  wrote :  " . . .  there  is 
nothing  in  the  law  of  nations  which  forbids  one  nation 
to  render  assistance  to  the  established  government  in 
such  case  of  revolt,  if  its  assistance  is  invoked.  This 
aid  is  no  interference,  and  is  given  to  keep  up  the  pres- 
ent order  of  things,  which  international  law  takes 
under  its  protection."56  (Woolsey:  Introduction  to 
International  Law,  1st  ed.,  1860,  §  41,  p.  89 ;  also  6th 
ed.,  §42,  p.  43.) 

But  this  theory  has  a  serious  imperfection.  It  does 
not  work  in  practice.  By  the  test  of  actual  experience, 
it  has  been  tried  and  found  wanting.57  The  assistance 
which  a  state  accords  its  struggling  neighbor  has  been 
found  to  deepen  the  hostile  feelings  of  the  factions,  to 
discredit  the  sovereign,  and  to  render  it  suspect  of  de- 
pendence upon  the  will  of  the  helping  state. 

By  other  states  the  transaction  is  regarded  with  ut- 
most jealousy,  since  it  often  presages  a  close  alliance, 
and  the  state  rendering  assistance  likewise  becomes  the 
target  of  all  the  disappointed  parties  in  the  assisted 
state.  Its  action  engenders  undying  hatred.  For  all 
these  reasons,  assistance  for  the  purpose  of  suppress- 

56Geffcken  quotes  Guizot  as  saying  that  the  French  inter- 
vention in  Spain,  "...  in  spite  of  its  success,  brought  no  good, 
either  to  Spain  or  to  France.  It  delivered  Spain  over  to  the 
incapable  and  incurable  despotism  of  Ferdinand  VII,  without 
putting  an  end  to  revolutions,  and  substituted  the  ferocities 
of  the  absolutists  in  place  of  the  anarchists.  Instead  of  the 
maintenance  of  French  influence  beyond  the  Pyrenees  being 
assured,  it  was  injured  and  destroyed."  (Translated  from 
Holtzendorff:  Handbuch  des  Voelkerrechts,  vol.  IV,  143.) 

Russia's  interference  to  assist  Austria  to  crush  the  Hun- 
garian uprising  had  much  to  do  with  arousing  public  opinion 
against  the  intermeddler,  who  was  punished  at  Sebastopol. 
In  this  case,  it  might  be  said  that  Russia  interfered  to  serve 
a  national  interest  in  assisting  to  suppress  an  uprising  in  close 
proximity  to  her  Polish  provinces. 

"See  Bluntschli :   Voelkerrecht,  §  474. 


4.  ASSISTANCE  331 

ing  insurrection  can  no  longer  be  justified  as  in  accord 
with  the  approved  practice  of  civilized  states,  and  since 
it  has  been  condemned  in  practice,  assistance  may 
properly  be  classified  as  unjustifiable.  It  is  therefore 
an  instance  of  interference.58 

Funck-Brentano  and  Sorel  point  out  that  a  govern- 
ment exceeds  its  authority  when  it  calls  upon  foreign 
help: 

"When  a  state  intervenes  [interferes]  to  sustain  the 
internal  government  of  another  state,  in  accordance 
with  the  wishes  of  the  latter,  the  intervention  [inter- 
ference] results  from  an  alliance;  but  this  alliance  is 
of  a  peculiar  nature,  for  the  government  which  asks  or 
accepts  the  intervention  [interference]  of  a  foreign 
state  itself  attacks  the  sovereignty  of  the  state  which 
it  directs.  Such  a  government  demonstrates  its  in- 
capacity to  make  its  authority  respected  by  the  sub- 
jects of  the  state,  and  it  declares  by  implication  that  it 
has  allowed  the  sovereignty  of  the  state  to  perish. 
States  are  not  states,  are  not  sovereign,  and  are  not 


58Bluntschli  contradicts  what  he  has  said  (§  474)  and  falls 
into  error  by  declaring  that  ' '  intervention  is  authorized  when 
the  state  itself  either  requests  a  friendly  power  to  intervene 
or  accepts  an  offer  to  do  so."  (Translated  from  Lardy 's 
French  edition,  §  475.) 

But  Hall  remarks:  "As  interventions,  in  so  far  as  they 
purport  to  be  made  in  compliance  with  an  invitation,  are 
independent  of  the  reasons  or  pretexts  which  have  been 
already  discussed,  it  must  be  assumed  that  they  are  based 
either  on  simple  friendship  or  upon  a  sentiment  of  justice. 
If  intervention  on  the  ground  of  mere  friendship  were  allowed, 
it  would  be  idle  to  speak  seriously  of  the  rights  of  independ- 
ence. "  Further  along,  Hall  declares  that  if  the  intervention 
"be  directed  against  rebels,  the  fact  that  it  has  been  neces- 
sary to  call  in  foreign  help  is  enough  to  show  that  the  issue 
of  the  conflict  would,  without  it,  be  uncertain,  and  conse- 
quently that  there  is  a  doubt  as  to  which  side  would  ultimately 
establish  itself  as  the  legal  representative  of  the  state."  (In- 
ternational Law,  4  ed.,  §  94,  p.  307.) 


332  NON-INTERFERENCE 

independent  unless  they  maintain  order  within,  and 
secure  respect  for  their  territory.  States  only  exist  as 
the  representatives  of  nations  and  the  defenders  of 
their  interests.  A  state  that  appeals  to  foreign  sup- 
port against  its  own  subjects  fails  in  its  duty,  since  in- 
stead of  defending  the  nation  against  foreigners,  it 
invites  foreigners  to  violate  its  independence,  and  it  ex- 
ceeds its  rights,  since  it  no  longer  acts  as  a  represen- 
tative of  the  nation."  (Translated  from  Funck-Bren- 
tano  et  Sorel:  Droit  des  Gens,  p.  219-220.) 

But  an  invitation  would  evidently  not  be  essential  if 
the  action  to  suppress  revolution  could  be  justified  as 
taken  to  protect  all  of  the  states  against  a  great  and 
imminent  danger.59  This  was  the  basis  of  the  inter- 
ference policy  of  the  Holy  Alliance  to  suppress  revolu- 
tions. Metternich  states  this  program  of  the  Holy  Al- 
liance in  a  circular  dispatch  of  May  12, 1821. 

"Useful  or  necessary  changes  in  the  governments  of 
states  must  emanate  only  from  the  free  will  and  the 
thoughtful  and  enlightened  initiative  of  those  whom 
God  has  made  responsible  for  power. 

"They  (the  powers)  will  consider  void,  and  contrary 
to  the  principles  of  the  public  law  of  Europe,  all  pre- 
tended reforms  brought  about  by  revolution,  or  by 
force."60  (Circular,  May  12,  1821,  Martens:  Nouv. 
Recueil,  vol.  V,  p.  644;  Lingelbach:  Intervention  in 
Europe,  p.  12.) 

The  British  Government,  championing  non-interfer- 
ence, had  opposed  these  doctrines  of  assistance  to  legit- 


69See  discussion  above,  under  §  9. 

60See  Sheldon  Amos :  Remedies  for  War,  p.  265-7 ;  W.  A. 
Phillips:  The  Confederation  of  Europe,  p.  218-233;  and  it 
was  to  oppose  this  broad  assertion  of  a  right  to  interfere  that 
Castlereagh  issued  his  famous  circular  of  January  19,  1921. 


ASSISTANCE  333 

imate  government.61  But  even  the  British  Govern- 
ment mildly  interfered  itself  by  delaying  the  recog- 
nition of  the  revolutionary  government  in  Naples,  and 
by  criticizing  the  manner  in  which  it  had  come  into 
power.62 

This  was  an  exception  and  on  the  whole  the  British 
Government  threw  its  influence  against  the  legitimacy 
doctrine  which  would  excommunicate  revolutionary 
government. 

On  January  19, 1821,  Viscount  Castlereagh  addressed 
the  following  circular  to  the  British  ministers  at  For- 
eign Courts: 

1  *  I  should  not  have  felt  it  necessary  to  have  made  any 
communication  to  you,  in  the  present  state  of  the  dis- 
cussions begun  at  Troppau  and  transferred  to  Laybach, 
had  it  not  been  for  a  Circular  Communication,  which 
has  been  addressed  by  the  Courts  of  Austria,  Prussia 
and  Eussia,  to  their  several  Missions,  and  which,  His 
Majesty's  Government  conceive,  if  not  adverted  to, 
might  (however  unintentionally)  convey,  upon  the  sub- 
ject therein  alluded  to,  very  erroneous  impressions  of 
the  past,  as  well  as  of  the  present,  sentiments  of  the 
British  Government. 


"Lord  Liverpool's  government  in  1815  objected  to  the 
introduction  of  the  words  'souverain  legitime'  [legitimate 
sovereign]  into  a  draft  of  a  treaty  with  the  restored  govern- 
ment in  France."  (Bernard:  Non-intervention,  p.  15.) 

62In  answer  to  Lord  Grey's  speech  in  the  House  of  Lords, 
February  19,  1821,  attacking  the  government  for  interfering 
to  assist  the  King  of  Naples,  Lord  Liverpool  denied  that  his 
government  had  interfered,  or  that  ground  for  interference 
had  been  given,  (referring  evidently  to  forcible  interference), 
but  declared  that  the  circumstances  made  "  indispensably 
necessary  that  the  government  should  publish  its  disapproval 
of  those  proceedings.  In  the  first  place  that  revolution  was 
effected  by  a  military  mutiny;  and,  in  the  next,  the  Spanish 
Constitution  was  adopted  under  the  most  extraordinary  cir- 
cumstances." (Hansard's  Debates,  2nd  Series,  vol.  4,  p. 
764.) 


334  NON-INTERFERENCE 

"It  has  become,  therefore,  necessary  to  inform  you, 
that  the  King  has  felt  himself  obliged  to  decline  be- 
coming a  Party  to  the  measures  in  question. 

"These  measures  embrace  2  distinct  objects: 

"1st.  The  establishment  of  certain  general  princi- 
ples for  the  regulation  of  the  future  political  conduct  of 
the  Allies,  in  the  cases  therein  described ; 

' '  2ndly.  The  proposed  mode  of  dealing,  under  these 
principles,  with  the  existing  affairs  of  Naples. 

'  *  The  system  of  measures  proposed  under  the  former 
head,  if  to  be  reciprocally  acted  upon,  would  be  in  direct 
repugnance  to  the  fundamental  Laws  of  this  Country. 
—But,  even  if  this  decisive  objection  did  not  exist,  the 
British  Government  would,  nevertheless,  regard  the 
principles  on  which  these  measures  rest,  to  be  such  as 
could  not  be  safely  admitted  as  a  system  of  interna- 
tional law.  They  are  of  opinion  that  their  adoption 
would  inevitably  sanction,  and,  in  the  hands  of  less 
beneficent  Monarchs,  might  hereafter  lead  to  a  much 
more  frequent  and  extensive  interference  in  the  in- 
ternal transactions  of  States,  than  they  are  persuaded 
is  intended  by  the  August  Parties  from  whom  they  pro- 
ceed, or  can  be  reconcilable  either  with  the  general  in- 
terest, or  with  the  efficient  authority  and  dignity  of  In- 
dependent Sovereigns.  They  do  not  regard  the  alliance 
as  entitled,  under  existing  Treaties  to  assume,  in  their 
character  as  Allies,  any  such  general  powers,  nor  do 
they  conceive  that  such  extraordinary  powers  could  be 
assumed,  in  virtue  of  any  fresh  diplomatic  transaction 
amongst  the  Allied  Courts,  without  their  either  at- 
tributing to  themselves  a  supremacy  incompatible  with 
the  rights  of  other  States,  or,  if  to  be  acquired  through 
the  special  accession  of  such  States,  without  introduc- 
ing a  federative  system  in  Europe,  not  only  unwieldy 
and  ineffectual  to  its  object,  but  leading  to  many  most 
serious  inconveniences. 


ASSISTANCE  335 

"With  respect  to  the  particular  Case  of  Naples,  the 
British  Government,  at  the  very  earliest  moment,  did 
not  hesitate  to  express  their  strong  disapprobation  of 
the  mode  and  circumstances  under  which  that  Revolu- 
tion was  understood  to  have  been  effected;  but  they, 
at  the  same  time,  expressly  declared  to  the  several  Al- 
lied Courts,  that  they  should  not  consider  themselves  as 
either  called  upon,  or  justified,  to  advise  an  interfer- 
ence on  the  part  of  this  Country :  they  fully  admitted, 
however,  that  other  European  States,  and  especially 
Austria  and  the  Italian  Powers,  might  feel  themselves 
differently  circumstanced ;  and  they  professed,  that  it 
was  not  their  purpose  to  prejudge  the  question  as  it 
might  affect  them,  or  to  interfere  with  the  course  which 
such  States  might  think  fit  to  adopt,  with  a  view  to  their 
own  security;  provided  only,  that  they  were  ready  to 
give  every  reasonable  assurance,  that  their  views  were 
not  directed  to  purposes  of  aggrandizement,  subversive 
of  the  Territorial  system  of  Europe,  as  established  by 
the  late  Treaties. 

"Upon  these  principles,  the  conduct  of  His  Majesty's 
Government,  with  regard  to  the  Neapolitan  Question, 
has  been,  from  the  first  moment,  uniformly  regulated, 
and  Copies  of  the  successive  Instructions  sent  to  the 
British  Authorities  at  Naples,  for  their  guidance,  have 
been,  from  time  to  time,  transmitted  for  the  informa- 
tion of  the  Allied  Governments. 

"With  regard  to  the  expectation,  which  is  expressed 
in  the  Circular  above  alluded  to,  of  the  assent  of  the 
Courts  of  London  and  Paris  to  the  more  general  meas- 
ures proposed  for  their  adoption,  founded,  as  it  is  al- 
leged, upon  existing  Treaties, — in  justification  of  its 
own  consistency  and  good  faith,  the  British  Govern- 
ment, in  withholding  such  assent,  must  protest  against 
any  such  interpretation  being  put  upon  the  Treaties  in 
question,  as  is  therein  assumed. 


336  NON-INTERFERENCE 

"They  have  never  understood  these  Treaties  to  im- 
pose any  such  obligations;  and  they  have,  on  various 
occasions,  both  in  Parliament  and  in  their  intercourse 
with  the  Allied  Governments,  distinctly  maintained  the 
negative  of  such  a  proposition:  that  they  have  acted 
with  all  possible  explicitness  upon  this  subject,  would 
at  once  appear  from  reference  to  the  deliberations  at 
Paris  in  1815,  previous  to  the  conclusion  of  the  Treaty 
of  Alliance; — at  Aix-la-Chapelle  in  1818; — and,  sub- 
sequently, in  certain  discussions  which  took  place  in 
the  course  of  the  last  year. 

"After  having  removed  the  misconception  to  which 
the  passage  of  the  Circular  in  question,  if  passed  over 
in  silence,  might  give  countenance ;  and  having  stated 
in  general  terms,  without  however  entering  into  the 
argument,  the  dissent  of  His  Majesty's  Government 
from  the  general  principle  upon  which  the  Circular  in 
question  is  founded;  it  should  be  clearly  understood, 
that  no  government  can  be  more  prepared  than  the 
British  Government  is,  to  uphold  the  right  of  any  State 
or  States  to  interfere,  where  their  own  immediate  se- 
curity, or  essential  interests,  are  seriously  endangered 
by  the  internal  transactions  of  another  State. — But,  as 
they  regard  the  assumption  of  such  right  as  only  to  be 
justified  by  the  strongest  necessity,  and  to  be  limited 
and  regulated  thereby,  they  cannot  admit  that  this 
right  can  receive  a  general  and  indiscriminate  applica- 
tion to  all  revolutionary  movements,  without  reference 
to  their  immediate  bearing  upon  some  particular  State 
or  States,  or  be  made  prospectively  the  basis  of  an  Alli- 
ance.— They  regard  its  exercise  as  an  exception  to  gen- 
eral principles,  of  the  greatest  value  and  importance, 
and  as  one  that  only  properly  grows  out  of  the  circum- 
stances of  the  special  case ;  but  they,  at  the  same  time, 
consider,  that  exceptions  of  this  description  never 
can,  without  the  utmost  danger,  be  so  far  reduced  to 


ASSISTANCE  337 

rule  as  to  be  incorporated  into  the  ordinary  diplomacy 
of  States,  or  into  the  Institutes  of  the  Law  of  Nations. 

"As  it  appears  that  certain  of  the  Ministers  of  the 
3  Courts  have  already  communicated  this  Circular  Dis- 
patch to  the  Courts  to  which  they  are  accredited,  I  leave 
it  to  your  discretion  to  make  a  corresponding  communi- 
cation, on  the  part  of  your  Government;  regulating 
your  language  in  conformity  to  the  principles  laid 
down  in  the  present  Dispatch.  You  will  take  care,  how- 
ever, in  making  such  communication,  to  do  justice,  in 
the  name  of  your  Government,  to  the  purity  of  inten- 
tion which  has  no  doubt  actuated  these  August  Courts, 
in  the  adoption  of  the  course  of  measures  which  they 
are  pursuing.  The  difference  of  sentiment  which  pre- 
vails between  them  and  the  Court  of  London  on  this 
matter,  you  may  declare,  can  make  no  alteration  what- 
ever in  the  cordiality  and  harmony  of  the  Alliance  on 
any  other  subject,  or  abate  their  common  zeal  in  giving 
the  most  complete  effect  to  all  their  existing  Engage- 
ments." (British  State  Papers,  1820-1,  Vol.  8,  p. 
1160-2.) 

For  a  time  Metternich  was  able  to  organize  the  con- 
tinental monarchs  for  the  purpose  of  interfering  to  in- 
sure themselves  against  the  dangers  of  revolution,  but 
even  Russia  sympathized  with  the  Greek  revolt  and 
would  not  help  to  suppress  it.63  The  Revolution  of  July 
(1830)  in  France  gave  the  doctrine  of  interference  to 
assist  the  "legitimate"  government  a  fatal  blow,  al- 
though it  was  a  long  time  before  the  reactionary  powers 
entirely  abandoned  the  policy  of  suppressing  revolu- 
tion.64 


68See  W.  A.  Phillips:  The  Confederation  of  Europe,  p. 
234f. 

64Metternich  protested,  in  September,  1830,  against  "the 
presumption  of  the  French  Government  for  its  own  conven- 
ience, to  set  up  a  new  law  of  nations,  which  was  nothing  more 
than  a  complete  overturning  of  all  the  rules  which  had  until 
22 


338  NON-INTERFERENCE 

In  1843,  Nassau  Senior  remarks  upon  the  views  of 
Austria,  Prussia,  and  Russia  as  to  the  illegality  of  in- 
surrection against  the  "supreme,  never  ceasing,  indi- 
visible authority  of  a  king,"  and  continues,  "They 
further  assert  that,  by  international  law,  all  third  par- 
ties are  justified  in  interfering  to  enable  a  sovereign 
to  retain  or  recover  his  authority.  Whether  they 
should  or  should  not  actually  interfere,  they  have  con- 
sidered it  a  matter  of  discretion  to  be  governed  by  the 
circumstances  of  each  case ;  but  we  are  not  aware  that 
any  one  of  them  has  ever  abandoned,  or  doubted,  or 
even  limited  that  right."  (Edinburgh  Review,  April, 
1843,  vol.  156,  p.  365.)  But  on  the  same  page,  Senior 
states  that  England  "denies  that  third  parties  can  law- 
fully interfere  to  force  a  people  to  obey  their  sover- 
eign." (Ibid,  p.  365-6.) 

In  some  instances,  the  British  Government  went 
further  than  a  mere  denial,  as  is  shown  by  the  follow- 
ing instructions  of  March  2,  1863,  which  Lord  Russell, 
then  Minister  for  Foreign  Affairs,  dispatched  to  the 
British  Representative  at  Berlin : 

' '  The  Convention  which  has  been  concluded  between 
Russia  and  Prussia,  relating  to  the  affairs  of  Poland, 
has  caused  considerable  uneasiness  in  this  country. 

' '  The  Powers  of  Europe  were  disposed  to  be  neutral 
in  the  contest  between  the  Russian  Government  and  the 
Polish  insurgents. 

"Prussia  has  departed  from  this  course. 

"My  inquiries,  as  well  as  a  dispatch  from  Lord 
Napier,  have  led  me  to  believe  that  the  Convention  con- 
tains : 


then  guided  the  diplomacy  of  European  states. ' '  (Lingelbach : 
Intervention  in  Europe,  in  Annals  of  the  American  Academy, 
Vol.  16,  (1900),  p.  14,  citing  Geffcken  in  Holtzendorff 's  Hand- 
buch  des  Volkerrechts,  Vol.  IV,  p.  143.)  But  even  before  this, 
action  by  France,  England  had  opposed  the  doctrine  of 
legitimacy  and  restoration. 


ASSISTANCE  339 

"1.  An  agreement  that  Russian  troops,  upon  cross- 
ing the  frontier  of  Prussia,  shall  not  be  disarmed,  as 
would  be  required  according  to  international  usage, 
but  shall  be  allowed  to  retain  their  arms,  and  to  remain, 
and  to  act  as  an  armed  body  in  Prussian  territory. 

' '  2.  A  permission  for  Russian  troops  to  pursue  and 
capture  Polish  insurgents  on  Prussian  territory. 

1 '  Count  Bernstorff  defended  this  Convention,  and  de- 
clared that  it  was  not  an  engagement  invoking  inter- 
vention [interference]  in  the  contest  between  Russia 
and  the  Poles. 

1  'But  it  is  clear  that  if  Russian  troops  are  to  be  at 
liberty  to  follow  and  attack  the  Polish  insurgents  in 
Prussian  territory,  the  Prussian  Government  makes 
itself  a  party  to  the  war  now  raging  in  Poland. 

"If  Great  Britain  were  to  allow  a  Federal  ship-of- 
war  to  attack  a  Confederate  ship  in  British  waters, 
Great  Britain  would  become  a  party  to  the  war  between 
the  Federal  Government  of  the  United  States  and  the 
Confederate. 

"It  is  obvious  that  by  this  Convention  Prussia  en- 
gages to  become  a  party  in  the  war  against  the  Poles 
without  any  apparent  necessity  for  so  doing.  For  Her 
Majesty's  Government  have  not  heard  that  any  disaf- 
fection prevails  in  the  Polish  provinces  of  Prussia. 

"It  is  but  too  probable  that  this  Convention  will  irri- 
tate the  Polish  subjects  of  Prussia,  tend  to  excite  dis- 
affection where  it  has  not  hitherto  existed,  and  thus  ex- 
tend the  insurrection. 

"Upon  viewing  this  Convention  in  all  its  aspects, 
therefore,  Her  Majesty's  Government  are  forced  to 
arrive  at  the  conclusion  that  it  is  an  act  of  intervention 
[interference]  which  is  not  justified  by  necessity; 
which  will  tend  to  alienate  the  affections  of  the  Polish 
subjects  of  the  King  of  Prussia ;  and  which,  indirectly, 


340  NON-INTERFERENCE 

gives  support  and  countenance  to  the  arbitrary  con- 
scription of  Warsaw. 

"You  will  read  this  dispatch  to  M.  Bismarck,  and 
you  will  ask  for  a  copy  of  the  Convention  between  Prus- 
sia and  Russia. 

"It  is  possible  that  the  Government  of  Prussia  and 
Russia,  aware  of  the  objections  to  which  this  Conven- 
tion is  liable,  and  seeing  the  ill  consequences  it  may 
produce,  may  be  disposed  to  cancel  it,  or  to  put  an  end 
to  its  operation. 

"In  that  case  you  will  inform  me  what  steps  have 
been  taken  with  that  view."  (British  Foreign  State 
Papers,  1862-3,  vol.  53,  p.  807-8.  )65 


65Three  days  later,  Lord  Russell  seems  to  have  considered 
the  convention  less  offensive  (see  British  State  Papers,  1862- 
3,  vol.  53,  p.  814.) 

In  reference  to  this  convention,  it  is  interesting  to  read  the 
remarks  of  Representative  Waldeck  in  the  Prussian  Chamber, 
February  18,  1863,  in  which  he  severely  criticized  Bismarck's 
interference  to  assist  Russia  in  suppressing  the  Polish  insur- 
rection. (British  Foreign  State  Papers,  1862-3,  vol.  53,  p. 
793-4.) 

In  his  despatch  of  February  21,  1863,  the  British  Minister 
at  Berlin  especially  drew  Lord  Russell's  attention  to  Repre- 
sentative Waldeck 's  speech,  "first,  because  it  has  excited 
special  attention,  and  has  highly  exasperated  the  semi-official 
organs  of  the  Government;  and  secondly,  because  it  fairly 
represents  the  feelings  of  a  great  portion  of  the  Liberal  party 
in  regard  to  the  proposed  intervention. 

"To  mark  still  more  its  sense  of  what  the  exigencies  of  the 
present  moment  demand,  the  Party  of  Progress  has  drawn  up 
a  resolution  to  the  effect  that  'the  House  do  declare  that  the 
interests  of  Prussia  require  that  the  Government  should  ab- 
stain from  rendering  any  assistance,  or  showing  any  favor 
either  to  the  Russian  Government  or  to  the  insurgents,  and 
that  consequently  neither  of  the  parties  engaged  be  admitted 
upon  Prussian  territory  without  being  previously  disarmed.' 

"This  resolution  has  been  submitted  to  a  committee  of  21 
members,  and  will  be  brought  before  the  House  as  soon  as  the 
committee  have  drawn  up  their  report  upon  it. 


ASSISTANCE  341 

We  still  occasionally  find  instances  of  assistance  of 
a  less  pronounced  or  drastic  nature  than  is  the  forcible 
invasion  of  a  neighboring  territory,  as  for  example, 
when  a  state  makes  no  protest  when  a  neighbor  block- 
ades territory  in  the  control  of  insurgents  for  the  pur- 
pose of  suppressing  a  revolt  without  according  recog- 
nition of  belligerency.68  Sometimes  such  complaisance 

"The  language  of  the  Liberal  press  is  unanimous  in  con- 
demning the  policy  of  the  Government,  but  it  is  so  much  an 
echo  of  what  has  been  said  in  the  Chamber  that  a  reproduction 
of  it  would  only  be  a  repetition  of  what  is  given  in  the  en- 
closed report. 

"A  circular  addressed  by  the  President  of  Police  at  Breslau 
to  the  Silesian  press  is  not  uninteresting  as  showing  the  pos- 
sible proportions  which  the  intervention  may  take.  It  warns 
the  newspapers  against  giving  any  indications  of  the  move- 
ments of  the  troops,  saying  that  all  the  advantages  of  sudden 
concentration  would  be  thereby  lost,  'whether  such  would  be 
required  for  the  defence  of  the  frontier  or  for  direct  action 
in  the  neighboring  State  ("zu  einem  directen  auftreten  im 
Auslande"). 

"  It  is  further  worthy  of  notice,  in  connection  with  this  sub- 
ject, that  Thorn  and  other  important  towns  situated  in  the 
Polish  districts  have  sent  up  deputations,  principally  com- 
posed of  Germans,  to  protest  against  the  rumors  put  about 
to  the  effect  that  the  districts  from  which  they  come  were 
disturbed,  or  that  the  inhabitants  apprehended  danger." 
(British  Foreign  State  Papers,  1862-3,  vol.  53,  p.  789-790.) 

06Lord  Lyons,  in  a  letter  of  March  26,  1861,  relates  how 
"Mr.  Seward  asked  whether  England  would  not  be  content 
to  get  cotton  through  the  northern  ports,  to  which  it  could 
be  sent  by  land."  (Lord  Newton:  Lord  Lyons,  I,  1913,  31.) 

Notwithstanding  Lord  Lyons 's  objection,  five  days  later  Mr. 
Seward  told  him :  "I  differ  with  my  predecessor  as  to  de  facto 
authorities.  If  one  of  your  ships  comes  out  of  a  southern  port 
without  the  papers  required  by  the  laws  of  the  U.  S.,  and  is 
seized  by  one  of  our  cruisers  and  carried  into  New  York  and 
confiscated,  we  shall  not  make  any  compensation."  (Ibid, 
33.) 

Notwithstanding  Seward 's  insistence,  Great  Britain  recog- 
nized the  belligerency  of  the  Confederate  States. 

Holland  (Studies  in  International  Law,  p.  138-140)  gives 
the  following  instances  of  acquiescence  in  blockade  without 


342  NON-INTERFERENCE 

is  an  act  of  assistance  no  less  effective  than  an  armed 
intervention  would  be.  Another  form  of  assistance 
which  may  be  effective  in  suppressing  insurrection  is 
an  embargo  upon  the  shipment  of  arms,  such  as  the 
government  of  the  United  States  has  sometimes  pro- 
claimed on  its  Mexican  frontier.  Such  an  order  is  sure 
to  handicap  the  operations  of  the  insurgents,  and  it  is 
likely  to  lead  to  and  justify  reprisals.67  Still  another 

such  recognition :  Russia 's  blockade  of  Circassia  in  1826,  and 
Turkey's  blockade  of  Crete,  1866-68,  and  also  of  1897.  The 
same  authority  says  (ibid,  p.  145)  :  "Third  Powers  may  more 
fairly  be  called  upon  to  make  this  sacrifice  when  the  blockade 
has  a  high  political  object,  as  in  a  case  of  intervention,  or  is  a 
measure  of  self-preservation,  such  as  the  suppression  of  a 
rebellion. ' ' 

6T"  . . .  In  order  to  prevent  the  giving  of  aid  to  the  enemies 
of  the  government  at  the  City  of  Mexico,  the  Congress  of  the 
United  States  adopted  a  joint  resolution  empowering  the 
President  to  stop  the  exportation  of  arms  and  munitions  of 
war.  President  Taft  approved  this  resolution  on  March  14, 
1912,  and  on  the  same  day  put  it  into  effect.  The  export  of 
military  supplies  for  the  Mexican  government  continued  to 
be  lawful."  (J.  B.  Moore:  The  Principles  of  American 
Diplomacy,  1918,  p.  216.) 

Yet   a   few   months   previous    [January   25,   1911],   Hon. 
Wilbur  J.  Carr,  writing  for  Secretary  Knox,  had  set  forth 
the  principles  in  regard  to  the  export  of  contraband.     "You 
should  in  this  connection  have  also  clearly  in  mind  that  it  is 
not  illegal,  being  against  neither  the  international  laws  of 
neutrality  nor  the  rules  of  our  neutrality  statutes,  to  trade 
in  arms  and  ammunition  during  a  war  or  during  a  revolu- 
tion;   that  trade  in  such  materials  is  merely  trade  in  con- 
traband of  war;    and  that  the  persons  engaging  therein  are 
subject  to  no  other  penalty  than  the  confiscation  of  the  ma- 
terials in  which  they  are  trading.     Therefore,  so  long  as  our 
customs  laws  are  complied  with  in  the  matter  of  the  commer- 
cial shipment  of  arms  and  ammunition  into  Mexico  it  is  not 
clear  in  what  way  we  may  legally  interfere  with  traffic  in 
such  materials  on  this  side  of  the  border.     If  the  Mexican 
Government  desires  to  exclude  such  materials  from  her  ter- 
ritories, it  is  clearly  her  duty  and  not  ours  to  accomplish 
such  exclusion."     (Foreign  Relations,   1911,   p.   399.       Cf. 
Ibid,  415-6;   433.) 


ASSISTANCE  343 

interference  by  way  of  assistance  is  to  grant  a  right  of 
transit  for  the  purpose  of  facilitating  the  suppression 
of  an  insurrection.68  After  the  United  States  had 
recognized  Carranza's  Government,  permission  was 
given  to  the  Mexican  troops  to  traverse  our  territory. 
It  was  not  surprising  that  the  Villa  faction  had  re- 
course to  reprisals.  On  March  9,  1916,  Villa,  at  the 
head  of  fifteen  hundred  Mexicans,  raided  the  town  of 
Columbus,  New  Mexico,  killing  several  persons  and 
committing  various  acts  of  destruction.69 

To  reconcile  this  conflict  of  opinion  and  disparity  of  prac- 
tice, it  is  necessary  to  remember  what  has  been  said  above 
under  §  10,  relative  to  the  supervision  of  less  developed  states. 
The  United  States  cannot  always  apply  the  rules  of  interna- 
tional law  in  Mexico  as  if  she  were  dealing  with  a  completely 
independent  state  instead  of  with  one  subject  to  a  certain 
supervision. 

68In  the  New  York  Sun  (April  17,  1920),  it  was  reported 
from  Washington  that  the  United  States  Government  had 
refused  to  allow  Carranza  to  transport  troops  across  United 
States  territory  to  attack  rebels  in  Sonora.  The  dispatch 
stated:  "The  precedent  established  when  troops  were  rushed 
across  American  territory  for  the  purpose  of  defeating  Villa 
at  Agua  Prieta  will  not  be  followed." 

Relative  to  the  above  incident,  I  have  prepared  the  follow- 
ing account  from  my  notes  of  documents  read  to  me,  and  of 
verbal  statements  made  at  the  Department  of  State,  in  May 
1920,  but  I  have  not  yet  received  a  copy  of  the  documents 
which  I  requested: 

October  19,  1915,  the  Mexican  Government  asked  permis- 
sion for  transit  from  Laredo  and  Eagle  Pass  to  Agua  Prieta, 
Sonora,  via  Douglas  "for  the  purpose  of  affording  fuller  pro- 
tection to  foreigners  and  natives  in  the  northern  part  of  the 
State  of  Sonora,  now  menaced  by  certain  forces  of  Francisco 
Villa,  and  to  make  it  an  easier  task  for  my  government  to 
defend  that  section  of  the  republic."  October  22,  the  United 
States  acknowledged  the  Mexican  note  and  gave  permission 
for  a  group  of  four  or  five  thousand  men,  unarmed,  arms  and 
ammunition  to  be  sent  as  baggage,  and  a  small  detachment  of 
American  troops  to  act  as  an  escort. 

09For  a  brief  account  of  these  events,  see  J.  B.  Moore: 
Principles  of  American  Diplomacy,  p.  227f. 


344  NON-INTERFERENCE 

After  it  has  been  shown  that  interference  for  the 
purpose  of  assisting  a  government  in  the  suppression 
of  revolt  is  contrary  to  international  law,  it  is  not  nec- 
essary for  us  to  discuss  interference  either  for  the  pur- 
pose of  the  ' '  restoration '  '70  of  a  deposed  sovereign,  or 
the  * '  reintegration "  to  their  former  sovereign  of 
provinces  which  have  established  their  independence. 

Interference  for  restoration  and  reintegration  evi- 
dently violates  the  de  facto  principle  of  sovereignty 
still  more  seriously  than  does  interference  merely  for 
the  suppression  of  revolt.  Consequently  their  illegality 
needs  no  demonstration  and  we  may  now  pass  on  to 
consider  the  nature  of  state  action  which  is  the  oppo- 


70Every  generation  in  European  history  has  had  its  deposed 
monarchs  to  show  how  ineffectual  was  the  sentimental  doc- 
trine of  legitimacy  and  the  related  constitutional  principle 
of  the  divine  right  of  kings  to  prevent  the  recognition  of  the 
de  facto  revolutionary  governments. 

Nevertheless  we  find  many  instances  of  the  persisting 
strength  of  this  idea  of  legitimacy,  as  when  the  Dutch  and 
French  gave  asylum  to  Charles  II  and  his  adherents.  Per- 
haps on  the  same  grounds  the  Dutch  were  not  very  active  in 
bringing  to  punishment  the  murderers  of  Cromwell's  am- 
bassador, and  shamelessly  allowed  the  regicide  judges  to  be 
extradited  after  the  restoration  of  Charles  II.  (See  Sir 
George  C.  Lewis:  Extradition,  p.  48  note.)  Cromwell's 
Ambassador  to  Sweden  was  instructed  to  protest  (1682) 
against  the  reception  of  the  representative  of  the  Stuart 
Pretender.  (John  Thurloe:  State  Papers,  vol.  I,  p.  228.) 

According  to  a  Berne  despatch  of  July  27,  1920  (New  York 
Times,  July  29,  1920),  the  socialist  press  of  Switzerland  con- 
demns the  government  for  the  favorable  treatment  accorded 
royal  personages  in  refuge.  The  dispatch  states  that  a  gov- 
ernment report  discloses  that  "Switzerland  has  two  laws  for 
strangers  desiring  to  enter  and  dwell  within  her  gates — one 
for  royal  and  princely  personages  and  their  suites,  and  an- 
other for  ordinary  individuals. ' ' 

For  the  purpose  of  historical  investigation  and  the  critical 
analysis  of  the  instances  of  interference,  this  division  of 
assistance  into  (1)  Suppression,  (2)  Restoration,  (3)  Rein- 
tegration, should  prove  convenient. 


SUPPORT  OF  REVOLUTION  345 

sition  of  assistance, — that  is,  the  support  of  revolution- 
ists against  their  government. 

§  14.    SUPPORT  OF  REVOLUTION 

Interference  in  support  of  insurrection  against  the 
recognized  government  can  hardly  hope  to  find  justifi- 
cation from  the  principles  of  international  law.71  On 

71"No  state,"  declares  Theodore  D.  Woolsey,  "is  authorized 
to  render  assistance  to  provinces  or  colonies  which  are  in 
revolt  against  the  established  government.  For  if  the  exist- 
ence and  sovereignty  of  a  state  is  once  acknowledged,  nothing 
can  be  done  to  impair  them ;  and  if  the  right  of  interference, 
— in  favor  of  liberty  for  instance, — be  once  admitted,  the  door 
is  open  for  taking  part  in  every  quarrel."  (Introduction 
to  International  Law,  1st  ed.,  1860  §  41,  p.  89.) 

It  is  not  necessary  to  refer  to  the  host  of  authorities  that 
have  reiterated  the  illegality  of  interference  in  internal  ques- 
tions. Sir  Henry  Maine  (quoting  Mr.  Hall)  remarks: 
"  'Thus  with  regard  to  the  first  power  or  right  which  is 
alleged  to  reside,  by  the  nature  of  the  case,  in  a  sovereign 
state,  the  power  of  organizing  itself  in  such  a  manner  as  it 
may  choose,  it  follows  that  such  a  state  may  place  itself  under 
any  form  of  government  that  it  wishes,  and  may  frame  its 
social  institutions  upon  any  model.  To  foreign  states,  the 
political  or  social  doctrines  which  may  be  exemplified  in  it, 
or  which  may  spread  from  it,  are  legally  immaterial.' 

"This  is  correct  law,  and  in  our  day  I  do  not  doubt  that 
to  most  minds  it  would  seem  plain  that,  the  condition  of 
Sovereignty  being  taken  for  granted,  these  rights  so  stated 
follow.  But,  as  a  matter  of  fact,  confining  ourselves  to  this 
branch  of  state  powers,  none  have  been  more  violently  denied 
or  disputed;  and  if  they  were  preserved  it  is  far  less  owing 
to  their  logical  connection  with  the  definition  of  state  Sover- 
eignty, than  from  the  fact  that,  from  the  very  first,  the  posi- 
tion that  they  exist  has  been  plainly  stated  by  the  interna- 
tional lawyers.  And  the  fact  that  these  rights  have  been 
preserved  is  a  signal  tribute  to  the  importance  of  International 
Law.  It  happens  that  the  long  peace  which  extended  from 
1815  to  1854  was,  both  at  its  beginning  and  at  its  end,  all 
but  broken  up  by  the  denial  of  these  simple  rights  of  which 
I  have  been  speaking."  (Sir  Henry  S.  Maine:  International 
Law,  2nd  ed.,  p.  61.) 


346  NON-INTERFERENCE 

the  contrary,  international  law  undoubtedly  lays  upon 
every  state  an  obligation  to  forbear  from  interference 


Even  when  France  came  to  the  help  of  the  American 
Revolutionists,  "...  the  French  Manifesto  states  that  the  King 
of  France  neither  was,  nor  pretended  to  be,  a  judge  of  the 
disputes  between  the  King  of  England  and  his  colonies;  and 
that  he  took  up  arms  to  avenge  his  injuries,  and  to  put  an 
end  to  the  tyrannical  empire  which  England  has  usurped,  and 
pretends  to  maintain,  upon  the  ocean."  (Annual  Register, 
vol.  22,  p.  390,  quoted  by  Senior:  Edinburgh  Review,  April, 
1843,  vol.  156,  p.  337.) 

John  Stuart  Mill,  in  a  letter  to  Pasquale  Villari,  June  30, 
1857,  wrote:  "The  English  Government  will  never  aid  a 
people  to  overthrow  its  government,  however  detestable  it 
may  appear.  You  have  seen  how  the  English  Government 
did  not  oppose  French  intervention  in  Rome,  Russian  inter- 
vention in  Hungary,  and  even  during  the  war  against  Russia, 
it  was  not  willing  to  stir  up  Poland.  Is  that  not  conclusive  f ' ' 
(Freely  translated,  Mill's  Letters,  vol.  I,  p.  195.) 

Mill's  opinion  is  borne  out  by  Seward's  plaint  in  his  in- 
structions to  Minister  Motley  dated  July  14,  1863 : 

"If  your  speculations  concerning  the  Polish  revolution  are 
correct,  as  I  believe  they  are,  then  it  will  be  seen  that  a  loca- 
tion within  the  immediate  sphere  of  European  politics,  like 
that  of  Russia,  has  some  advantages  as  well  as  some  disad- 
vantages. The  European  states  suffer  long  and  forbear  much 
with  a  nation  that  falls  under  the  affliction  of  civil  war,  if  it 
be  only  near  home.  They  are  very  intolerant  of  a  nation, 
on  this  continent,  that  suffers  its  domestic  wrangles  to  break 
the  peace  of  the  world.  The  Poles  are  not  yet  recognized  by 
either  France  or  Great  Britain  as  a  belligerent.  They  talk 
of  intervention  in  behalf  of  Poland,  but  they  do  not  act." 
(Diplomatic  Correspondence,  1863,  Part  II,  p.  926.) 

In  his  speech  on  the  recognition  of  the  independence  of  the 
revolted  Spanish  Colonies,  Sir  James  Mackintosh,  before  the 
House  of  Commons,  June  15,  1824,  said:  "With  respect, 
indeed  to  the  State  Papers  laid  before  us,  I  see  nothing  in 
them  to  blame  or  to  regret,  unless  it  be  that  excess  of  tender- 
ness and  forbearance  towards  the  feelings  and  pretensions  of 
European  Spain  which  the  Dispatches  themselves  acknowl- 
edge." (Miscellaneous  Works  of  Sir  James  Mackintosh,  vol. 
Ill,  p.  439.) 

In  the  case  of  Cuba,  where  strife  was  almost  chronic,  the 
United  States  pushed  forbearance  to  an  extreme  limit. 


SUPPORT  OF  REVOLUTION  347 

during  a  reasonable  period  while  the  lawfully  estab- 
lished government  is  attempting  to  reassert  its  au- 
thority. That  this  forbearance  entails  a  considerable 
burden  and  loss  is  no  adequate  ground  for  interfering 
until  a  period  reasonable  under  all  the  circumstances 
has  been  allowed  for  the  reestablishment  of  the  au- 
thority of  the  recognized  government.72  And,  even 
after  the  lapse  of  this  interval,  the  presumed  continu- 
ance of  friendly  sentiments  should  prevent  any  state 
from  recognizing  the  revolting  government  unless  the 
protection  of  important  interests  require  it.  A  decent 
respect  for  the  ties  and  relationships  which  bind  to- 
gether all  the  nations  should  make  every  state  delay 
rather  than  hasten  any  proffer  of  aid.73  This  obligation 
of  forbearance  does  not  relate  only  to  armed  invasion, 
but  requires  the  state  authority  to  refrain  from  all  un- 
friendly acts  or  encouragement  to  the  insurrectionists. 
This  obligation  of  forbearance  also  requires  states  to 
police  their  frontiers  and  to  prevent  the  organization 
and  departure  of  hostile  expeditions.  Political  refuge 
must  not  be  abused  and  allowed  to  screen  actual  prepa- 


72The  misery  which  the  blockade  of  the  Southern  ports  of 
the  Confederacy  caused  the  cotton  spinners  of  Manchester 
was  not  considered  by  the  British  Government  as  a  sufficient 
ground  for  intervention. 

73During  the  Sonderbund  conflict  in  Switzerland  (1846), 
which  arose  in  part  over  the  question  of  the  expulsion  of  the 
Jesuits,  France  and  the  reactionary  powers  espoused  the 
cause  of  the  revolting  cantons  and  threatened  to  impose  upon 
Switzerland  the  arbitration  of  the  Pope.  This  support  of  the 
revolt  was  so  patently  an  unjustifiable  interference  in  the 
internal  affairs  of  Switzerland  that  Lord  Palmerston  was  able 
to  thwart  it  by  diplomacy  alone  until  Switzerland  had  over- 
thrown the  Sonderbund.  This  is  a  striking  example  of  the 
respect  paid  to  international  law  in  a  case  where  the  States 
interfering  in  violation  of  law  were  much  more  powerful  than 
it  defenders.  See  Ashley's  Life  of  Palmerston,  vol.  I,  pp. 
5-16.  Cf.  also  the  somewhat  prejudiced  account  in  Sir  Robert 
Morier's  Memoirs,  vol.  I,  pp.  38-60. 


348  NON-INTERFERENCE 

rations  for  attack  (see  §1,  §  15)  and  legations  and 
warships  abroad  must  not  be  made  use  of  to  facilitate 
the  operations  of  conspirators  (see  §  8(f ) ). 

The  obligation  of  reasonable  forbearance  is  put  to 
the  test  in  the  matter  of  recognition.  The  recognition 
of  a  de  facto  government  without  unreasonable  delay 
after  it  has  firmly  established  its  authority  is  a  funda- 
mental principle  of  international  law,  and  until  such 
time  as  we  shall  have  a  more  complete  organization  of 
the  states  of  the  world,  it  will  be  difficult  to  conduct 
international  relations  upon  any  other  basis.74  Never- 
theless, the  feeling  of  mutual  trustfulness  and  security 
requires  that  every  state  should  be  able  to  rely  upon 
its  neighbors  not  to  impeach  its  sovereignty,  nor  to 
withdraw  in  any  manner  the  recognition  which  has 
once  been  accorded  except  when  necessary  for  the  pur- 
pose of  protecting  the  important  interests  of  the  State 
that  recognizes  the  new  government.  When  these  con- 
ditions are  fulfilled,  then  recognition  should  only  be 
given  after  the  insurrectionists  have  firmly  established 
their  de  facto  independence  and  have  maintained  them- 
selves beyond  the  period  in  which  it  is  reasonable  to  ex- 
pect the  other  states  to  support  the  inconvenience  of 
the  conflict. 

The  same  requirements  apply  also  to  what  is  often 
a  first  step  of  recognition — that  is,  recognition  of  bel- 
ligerency. Recognition,  when  justified  by  the  pressing 
need  of  the  state  to  deal  with  de  facto  authorities  is  not 
interference.  It  is  merely  the  exercise  of  an  undoubted 
right.  But  any  state  that  goes  beyond  the  limits  of 
what  is  required  to  secure  the  adequate  protection  of 
its  immediate  interests  is  guilty  of  a  violation  of  the 
sovereignty  of  a  sister  state.  Such  an  interference  in 
the  internal  affairs  of  another  state  must  be  branded  as 


74See  Westlake:  International  Law,  vol.  I,  p.  57-8. 


SUPPORT  OP  REVOLUTION  349 

contrary  to  the  law  of  nations.75.  "Premature  recog- 
nition" writes  Professor  J.  B.  Moore,  "constitutes  an 
act  of  intervention  [interference],  committed  in  favor 
of  insurgents  or  of  a  conqueror.  The  recognition  of 
the  United  States  of  America  by  France  was  in  reality 
an  act  of  intervention  [interference]  in  support  of  rev- 
olution (cf.  Moore's  Principles  of  American  Diplomacy, 
p.  13),  as  is  shown  by  Article  II  of  the  treaty.  Great 
Britain  recognized  the  Kingdom  of  Italy  before  Francis 
II  was  entirely  dispossessed."  (Moore's  Digest,  Vol. 
I,  p.  73.)  Premature  recognition  is  an  unwarranted  im- 
peachment of  sovereignty  and  is  always  an  assault  upon 
the  rights  of  the  parent  state. 


75As  long  as  the  sovereign  state  is  conducting  military  oper- 
ations to  regain  its  supremacy  over  the  territory  recognized 
as  belonging  to  it  under  the  law  of  nations,  there  is,  as  we 
have  said  above,  a  presumption  against  the  interference  of 
any  state,  even  on  the  grounds  of  protecting  its  interests,  but 
when  the  sovereign  state  seems  exhausted,  and  is  unable  or 
unwilling  to  prolong  its  efforts  to  reestablish  its  authority, 
the  presumption  in  its  favor  is  lost,  and  those  states  whose 
interests  are  affected  by  this  unfortunate  condition  of  affairs 
are  justified  in  recognizing  the  revolutionary  de  facto  govern- 
ment. Funck-Brentano  and  Sorel  discuss  the  question  of 
premature  recognition:  ''A  nation  which  revolts  against  the 
state  of  which  it  is  a  part,  and  wishes  to  establish  an  inde- 
pendent state,  engages  in  a  civil  war,  and  places  itself  outside 
of  the  public  law  of  the  state.  A  foreign  state  which  inter- 
venes [interferes]  in  support  of  this  nation  commits  an  act 
of  war  against  the  state  to  which  it  belongs,  and  steps  outside 
the  law  of  nations  in  time  of  peace.  If  interventions 
[interferences]  of  this  kind,  such  as  that  of  France  in  support 
of  the  United  States  in  the  reign  of  Louis  XVI,  appear  legiti- 
mate, it  is  because  instead  of  considering  them  in  relation 
to  international  law,  they  are  regarded  only  from  a  political 
viewpoint.  Such  an  act,  in  accord  with  a  wise  and  generous 
policy,  is  seen  to  have  produced  beneficial  results.  But  this 
policy  is  none  the  less  contrary  to  the  principle  of  interna- 
tional law  in  time  of  peace,  and  if  good  resulted,  it  was  only 
after  a  long  and  bloody  war."  (Translated  from  Funck- 
Brentano  and  Sorel:  Precis  du  droit  des  gens,  p.  221.) 


350  NON-INTERFERENCE 

But  when  after  a  protracted  struggle,  neither  side 
is  able  to  vanquish  the  other,  or  to  preserve  the  tran- 
quility  of  the  territory  over  which  it  claims  jurisdic- 
tion, there  arises  a  just  ground  for  impeachment  of 
sovereignty.  In  such  a  condition  of  anarchy  it  is  per- 
missible for  the  powers  to  intervene  and  adopt  such 
measures  as  seem  best  calculated  to  reestablish  order 
and  to  secure  respect  for  international  law  throughout 
the  land. 

A  protracted  civil  conflict  usually  degenerates  into  a 
condition  of  internecine  warfare,  and  as  such  justifies 
humanitarian  intervention  (see  §  8(c)) ;  or  the  execu- 
tive of  the  directing  powers,  acting  in  concert  or  sepa- 
rately as  mandatories  (§  10),  may  consider  that  the 
freedom  of  sovereignty  and  the  ensuing  anarchy  make 
it  necessary  to  impeach  the  sovereignty  of  the  state 
over  the  territory  in  question.76 

A  prolonged  struggle  is  almost  certain  seriously  to 
injure  the  commerce  of  all  other  states,  and  to  impose 

78Upon  the  ground  of  anarchy,  intervention  has  been  jus- 
tified by  many  writers.  Professor  Strauch,  after  expressing 
the  opinion  that  no  state  is  justified  in  intervening  in  the 
case  of  a  revolution  in  another  state,  declares  that  interna- 
tional law  has  no  concern  with  the  form  of  government  each 
state  may  adopt,  but  he  considers  that  the  government,  what- 
ever its  form,  must  be  able  to  preserve  order  and  fulfil  its 
obligations.  "When  conditions  of  anarchy  prevail,"  Pro- 
fessor Strauch  declares,  "other  states  have  an  undoubted 
right  to  intervene  without  waiting  for  an  invitation."  (Freely 
translated  from  Strauch 's  article  on  Intervention,  in 
Bluntschli's  Staatsworterbuch,  vol.  II,  1871,  p.  278.) 

Although  the  discussion  of  intervention  in  civil  wars  by 
Funck-Brentano  and  Sorel  (Precis  du  droit  des  gens,  p.  222) 
is  not  a  juridical  piece  of  reasoning,  it  is  interesting  and 
suggestive.  These  authors  consider  that  a  civil  war  puts  an 
end  to  all  authority,  and  that  "in  this  condition  of  anarchy, 
foreign  states  recognize  no  other  law  than  that  of  necessity." 
If,  according  to  these  authors,  they  find  one  of  the  parties 
capable  of  organizing  a  government,  they  recognize  it,  or 
they  may  act  as  their  interests  and  obligations  require. 


SUPPORT  OF  REVOLUTION  351 

upon  the  nearer  ones  great  burdens  of  police  in  the 
fulfilment  of  their  obligations;  in  addition,  vigilance 
and  military  preparation  are  often  necessary  in  order 
to  be  ready  to  protect  national  interests.  After  a  rea- 
sonable period  of  forbearance  to  allow  the  sovereign 
an  opportunity  to  reestablish  its  authority,  there  aris- 
es, as  we  have  indicated  above,  a  right  of  intervention 
to  prevent  further  injury  to  national  interests.  These 
grounds  for  intervention — anarchy,  humanity,  and  in- 
tolerable injury  to  the  interests  of  other  states — com- 
bine in  many  instances  to  constitute  the  very  strongest 
justification  for  recourse  to  such  measures  as  are  nec- 
essary to  put  an  end  to  the  strife.  Certain  authorities, 
perhaps  not  entirely  free  from  national  bias,  maintain 
that  interference  to  help  a  subject  race  to  secure  its 
freedom  is  not  interference  at  all.  How  weak  is  the 
force  of  logic  against  these  enthusiastic  proponents  of 
national  emancipation  !77  They  ignore  the  fact  that  in- 
ternational law  is  a  society  of  recognized  states  and  has 
no  place  for  tribes,  races,  or  nations  which  aspire  to  be 
accepted  into  the  good  fellowship  until  such  time  as  by 
force  of  arms  or  by  diplomacy  an  actual  independence 
has  been  achieved. 

No  state  can  remain  permanently  strong  which  con- 
tinues needlessly  to  oppress  a  subject  people.  The  au- 
thority exercised  over  them  must  be  tempered  with 
humanity,  or  control  will  sometime  surely  be  lost.  But 
unless  the  sovereign  is  guilty  of  gross  inhumanity,  par- 
ticipation in  the  struggle  by  another  state  is  as  we  have 

"See  Mamiani:  Rights  of  Nations;  or,  the  New  Law  of 
European  States  applied  to  the  Affairs  of  Italy,  p.  40-144, 
where  the  right  of  intervention  in  a  civil  war  is  denied,  but  is 
permitted  to  help  a  subject  people,  as  in  the  case  of  the  Dutch 
against  the  Spaniards;  the  Swiss  against  Burgundy,  etc. 
This  alleged  ground  of  intervention  has  been  considered  under 
§8  (b). 


352  NON-INTERFERENCE 

said,  an  act  purely  political  and  as  such  it  must  be 
judged.  The  evaluation  of  such  interference  requires 
the  balancing  of  the  benefits  against  the  dangers  and 
inconveniences,  and  the  verdict  which  public  opinion 
expresses  needs  to  be  checked  up  by  consequent  events. 
An  invitation  from  the  insurgents  can  certainly  have 
no  more  legal  effect  to  justify  interference  in  their  sup- 
port than  when  it  comes  from  the  recognized  govern- 
ment, and  since  unrecognized  insurrectionists  have  no 
legal  standing,  any  appeal  they  may  make  must  be  con- 
sidered solely  from  a  political  or  moral  viewpoint. 
Such  appeals  are  often  helpful  to  the  interfering  state 
as  a  defense  against  the  imputation  that  it  has  har- 
bored designs  of  conquest,  and  when  the  invitation 
comes  from  both  the  parties  in  conflict,  mediation  is 
properly  undertaken;  but  in  this  latter  event,  if  the 
proffered  suggestion  is  enforced,  mediation  disap- 
pears, and  we  have  an  instance  either  of  assistance  or 
support  of  revolution,  as  the  case  may  be.78 


78See  Bluntsehli:  Volkerrecht,  §  477;  Halleck:  Interna- 
tional Law  (1861),  p.  339,  ch.  XIV,  §  20.  Halleck  refers  to 
Phillimore,  vol.  I,  §  CCCXCV,  but  the  latter 's  discussion  is 
confused. 

After  Macintosh  has  stated  (History  of  the  Revolution  of 
1688,  p.  301-2),  with  charm  of  style  and  accuracy  of  reason- 
ing, the  grounds  which  justify  a  people  in  rising  against  a 
tyrant,  he  adds:  "Whenever  war  is  justifiable,  it  is  lawful 
to  call  in  auxiliaries."  But  it  does  not  necessarily  follow 
that  the  appeal  will  justify  another  state  in  intervening ;  even 
though  revolution  be  justifiable  by  the  test  of  certain  prin- 
ciples, it  remains  a  matter  to  be  determined  by  the  people  of 
each  state,  and  does  not  concern  international  law,  except 
when  its  course  is  marked  on  either  side  by  tyranny  and 
oppression  so  great  as  to  justify  intervention  on  grounds  of 
humanity. 

The  acts  of  James  II  were  sufficient  to  justify  revolution, 
but  it  seems  hardly  possible  to  regard  them  as  grounds  for 
humanitarian  intervention  by  foreign  states,  and  unless  we 
can  find  another  justification,  we  must  consider  the  invasion 


SUPPORT  OF  REVOLUTION  353 

It  has  frequently  happened  that  states  with  hostile 
design  have  incited  the  disaffected  elements  in  a  neigh- 
bor's  territory  to  rise  in  revolt.  This  has  been  con- 
demned as  a  violation  of  international  law,  but  is  it  a 
violation  of  international  obligation  when  a  just  ground 
for  war  exists  and  this  milder  measure  with  hostile  in- 
tent may  achieve  the  result  without  an  invasion  of  terri- 
tory by  foreign  troops!  Or,  when  an  invasion  is  neces- 
sary, is  it  not  laudable  to  secure  within  the  territory  of 
the  transgressor  the  cooperation  of  a  portion  of  the 


of  William  of  Orange  as  an  interference,  contrary  to  the  law 
of  nations. 

Vattel  writes:  "But  if  a  prince  by  violating  the  funda- 
mental laws,  gives  his  subjects  a  lawful  cause  for  resisting 
him,  if,  by  his  insupportable  tyranny  he  brings  on  a  natural 
revolt  against  him,  any  foreign  power  may  rightfully  give 
assistance  to  an  oppressed  people  who  ask  for  its  aid."  (Vattel, 
bk.  II,  §  56,  Carnegie  Translation,  p.  131.) 

When  the  conditions  are  such  as  afford  grounds  for  humani- 
tarian intervention,  an  appeal  for  foreign  aid  may  be  helpful 
to  justify  the  intervening  state  by  securing  public  sympathy 
and  by  showing  the  real  situation. 

This  is  the  real  significance  of  the  statement  by  Vattel 
and  certain  other  authorities  that  intervention  in  a  civil  war 
is  justifiable  when  one  of  the  parties  appeals  for  support. 
See  H.  von  Rotteck:  Einmischungsrecht,  p.  11  (No.  5); 
Martens :  Precis,  §  74 ;  Heffter :  Volkerrecht,  §  46.  In  those 
instances  when  the  appeal  for  intervention  is  not  justified 
upon  the  ground  of  humanity,  Hall  is  perfectly  correct  in 
declaring:  "When  intervention  so  undertaken  is  directed 
against  the  existing  government,  independence  is  violated  by 
an  attempt  to  prevent  the  regular  organ  of  the  state  from 
managing  the  state  affairs  in  its  own  way."  If  we  except 
the  instances  in  which  humanitarian  intervention  is  justified, 
we  must  agree  with  his  concluding  statement:  "If,  again, 
intervention  is  based  upon  an  opinion  as  to  the  merits  of  the 
question  at  issue,  the  intervening  state  takes  upon  itself  to 
pass  judgment  in  a  matter  which,  having  nothing  to  do  with 
the  relations  of  states,  must  be  regarded  as  being  for  legal 
purposes  beyond  the  range  of  vision."  (International  Law, 
4  ed.,  §  94,  p.  306-7.) 

23 


354  NON-INTERFERENCE 

population  to  help  to  enforce  respect  for  the  law  that 
has  been  violated? 

Formerly  when  the  majority  defended  the  divine 
right  of  kings  and  blamed  any  revolt  against  their  au- 
thority as  a  crime  they  might  expect  other  sovereigns 
to  refrain  from  complicity  in  a  revolt,  but  the  right  of  a 
people  to  revolt  against  tyranny  is  now  a  recognized 
principle  of  international  law.79 

To  Professor  Sheldon  Amos,  we  owe  the  following 
concise — and  so  far  as  I  know,  the  best — statement  of 
the  principles  governing  state  action  in  support  of 
revolutionists : 

"It  may  be  considered  that,  so  far  as  direct  and 
forcible  intervention  in  the  internal  affairs  of  a  Foreign 
State  is  concerned,  the  positive,  as  well  as  the  negative, 
side  of  the  doctrine  is  now  pretty  clearly  established; 
that  the  mere  strength,  extent,  or  organization  of  an  in- 
surrectionary movement  furnish  no  justification  for 
interference  either  on  one  side  or  the  other ;  the  dura- 
tion of  an  anarchial  condition,  coupled  with  the  ap- 
parent improbability  of  order  ever  being  restored,  may 


"Incitement  to  revolt  as  a  means  of  overcoming  the  resist- 
ance of  a  transgressor  cannot  here  be  given  the  attention  which 
its  importance  merits,  and  must  be  reserved  for  a  volume  now 
in  preparation  relative  to  the  means  of  enforcing  interna- 
tional law. 

It  may  well  be  that  the  salutary  principle  of  limiting  acts 
of  hostility  to  the  period  of  a  declared  war  should  prevent 
all  law-abiding  states  from  committing  certain  overt  acts  such 
as  the  shipment  of  arms  to  conspirators,  and  the  furnishing  of 
other  supplies. 

"It  is  in  violation  of  the  Law  of  Nations,"  writes  Vattel, 
"to  call  on  subjects  to  revolt  when  they  are  actually  obeying 
their  sovereign,  although  complaining  of  his  rule."  (Vattel, 
Bk.  II,  §  56,  Carnegie  translation,  p.  131.) 

France  furnished  the  American  Revolutionary  emissaries 
with  money  and  supplies  before  she  openly  committed  the 
hostile  act  of  recognizing  the  independence  of  the  Revolu- 
tionists while  the  conflict  was  still  in  doubt. 


PREVENTION  355 

justify  interference  on  the  ground  of  the  interest  which 
all  states  are  presumed  to  have  in  the  stability  and  in- 
tegrity of  each  state;  and  gross  acts  of  inhumanity 
persisted  in  on  either  side  may,  on  grounds  of  humani- 
ty, properly  precipitate  intervention."  (Sheldon 
Amos:  Political  and  Legal  Remedies  for  War,  p. 
157-8.) 

§  15.    PREVENTION 

p      -•* 

Every  state  has  the  right,  when  necessary  for  its  de- 
fense, to  anticipate  the  attack  which  another  state  pre- 
meditates and  prepares.  The  authorities  almost  with- 
out exception  recognize  this  right  of  prevention,  or 
preventive  war. 

Lord  Bacon,  in  his  " Essay  on  Empire,"  writes: 
' '  Neither  is  the  opinion  of  some  of  the  schoolmen  to  be 
received,  that  a  war  cannot  justly  be  made  but  upon  a 
precedent  injury  or  provocation ;  for  there  is  no  ques- 
tion but  a  just  fear  of  an  imminent  danger,  though 
there  be  no  blow  given,  is  a  lawful  cause  of  war." 
(Phillimore:  1854,  vol.  I,  p.  433.) 

Grotius  considers  that  "the  first  cause  of  a  just  war 
is  an  injury  not  yet  done  which  menaces  body  or 
goods."  (Grotius,  Bk.  II,  ch.  I,  sec.  II,  §  3,  Whewells's 
translation,  Vol.  I,  203.)  But  to  Sir  Edward  Creasy 
we  are  indebted  for  the  most  perfect  statement  of  the 
principle :  "A  state 's  right  to  security  means  not  only 
the  right  to  defend  itself  against  actual  direct  attack, 
but  the  right  to  preserve  itself  from  injury  by  antici- 
pating attack  in  cases  where  it  is  manifest  that  attack 
is  intended,  and  that  such  attack  cannot  be  prevented 
by  any  pacific  measures,  which  do  not  involve  undue 
self-abasement  and  loss  of  real  national  dignity.  In 
such  cases  (as  in  those  of  quarrels  between  individu- 
als) the  real  aggressor  is  not  he  who  first  employs 


356  NON-INTERFERENCE 

force,  but  he  who  renders  the  employment  of  force  nec- 
essary."80 (Creasy:  First  Platform  of  International 
Law,  1876,  p.  150.) 

But  preventive  war  commenced  without  sufficient 
cause  under  a  misapprehension  as  to  the  existence  of 
the  hostile  design  will  itself  constitute,  in  fact  if  not  in 
intent,  attack  upon  the  innocent  state.  It  will  also  be 
an  unjustifiable  interruption  of  the  peace  of  nations. 

We  may  appropriately  follow  Grotius  's  example  and 
quote  Cicero's  remark:  "That  most  injuries  proceed 
from  fear.  He  meditates  hurting  another  fearing  that 
if  he  do  not  so,  he  will  suffer  some  evil."  (Grotius, 
Book  II,  ch.  1.  V,  Whewells's  translation,  Vol.  I,  p.  208- 
210.) 

If  unreasonable  apprehensions  are  made  the  basis 
for  an  unnecessary  war,  the  peace  of  all  the  states 
will  be  destroyed.  To  obviate  this  inconvenience,  many 
attempts  have  been  made  to  formulate  the  conditions 
when  recourse  to  prevention  is  justifiable. 

The  text  writers  supply  us  with  many  definitions  of 
the  danger  which  would  justify  preventive  action,  but 
they  do  no  more  than  to  paraphrase  what  has  been 
said  above  in  regard  to  the  meaning  of  danger.  They 
do  not  attempt  to  set  forth  either  the  causes  of  the 


800ther  references  are :  Vattel,  Bk.  II,  §  50 ;  Bk.  Ill,  §  26. 
Professor  T.  E.  Holland  writes:  "The  right  of  a  state  to 
exist  in  safety  calls  for  no  remark.  Its  violation  or  threat- 
ened violation  gives  rise  to  the  remedial  right  of  self- 
preservation."  (Holland:  The  Elements  of  Jurisprudence, 
4  ed.,  1888,  p.  328.) 

Probably  the  writers  who  appear  to  controvert  the  right  of 
intervention  for  prevention  were  not  objecting  to  the  antici- 
pation of  an  attack  actually  in  preparation,  but  only  wished 
to  deny  the  alleged  right  of  attacking  an  innocent  state  on 
the  ground  that  it  was  necessary  for  self-preservation; — for 
example,  H.  von  Rotteck :  Recht  der  Einmischung,  1845, 
p.  24-5.  (See  discussion  of  "Necessity"  in  the  following  sec- 
tion 16.) 


PREVENTION  357 

peril  or  circumstances  in  which  it  may  reasonably  be 
presumed  to  exist. 

Vattel  declares  that  "a  nation  must  have  received 
an  injury,  or  be  clearly  threatened  with  one  before  it 
is  authorized  to  take  up  arms  as  having  a  just  ground 
for  war."  (Vattel,  Law  of  Nations,  Bk.  II,  §  42,  Car- 
negie translation,  p.  248.) 

Lord  Castlereagh,  in  his  note  on  the  affairs  of  Spain, 
considers  that  the  intervening  state  must  be  threatened 
with  * '  that  direct  and  immediate  danger,  which  has  al- 
ways been  regarded,  at  least  in  our  own  country,  as 
constituting  the  only  case  which  justifies  foreign  inter- 
vention." (De  Martens,  Rec.  Supp.  X.  I.  176,  quoted 
in  Manning:  Law  of  Nations,  p.  135.) 

It  adds  nothing  to  the  precision  of  such  definitions 
that  nations  should  be  cautioned  against  undertaking 
preventive  action  in  doubtful  cases,  as  when  Vattel 
declares  that  a  state  "may  even  anticipate  the  other's 
design,  being  careful,  however,  not  to  act  upon  vague 
and  doubtful  suspicions,  lest  it  should  run  the  risk  of 
becoming  itself  the  aggressor. "  (Vattel:  Bk.  II,  §  50, 
Carnegie  translation,  p.  130.) 

Chancellor  Kent  informs  us  that  "the  danger  must 
be  great,  distinct,  and  imminent,  and  not  rest  on  vague 
and  uncertain  suspicion."81 

Since  it  is  the  evidence  of  a  preparation  for  attack 
which  justifies  the  remedial  action  of  prevention,  the 
first  step  is  to  find  a  definition  of  attack. 


8 'But  this  same  eminent  authority  discloses  the  little 
juridical  value  which  he  attaches  to  this  definition  when  he 
tells  us  that  ' '  every  nation  has  an  undoubted  right  to  provide 
for  its  own  safety,  and  to  take  due  precaution  against  distant 
as  well  as  impending  danger, ' '  and  continues :  ' '  The  right  of 
self-preservation  is  paramount  to  all  other  considerations.  A 
rational  fear  of  an  imminent  danger  is  said  to  be  a  justifiable 
cause  of  war."  (Kent's  Commentaries,  12  ed.,  vol.  I,  p.  23. 
Kent  refers  to  Huber,  De  jure  civitatis,  lib.  3,  c.  7,  sec.  4.) 


358  NON-INTERFERENCE 

Westlake  gives  us  a  definition  when  he  asserts  the 
right  of  a  state  to  defend  itself  by  preventive  means 
"against  attack  by  another  state,  threat  of  attack,  or 
preparations  or  other  conduct  from  which  an  intention 
to  attack  may  reasonably  be  apprehended.  In  so  do- 
ing it  will  be  acting  in  a  manner  intrinsically  defensive 
even  though  externally  aggressive.  In  attack  we  in- 
clude all  violation  of  the  legal  rights  of  itself  or  its 
subjects,  whether  by  the  offending  state  or  by  its  sub- 
jects without  due  repression  by  it,  or  ample  compensa- 
tion when  the  nature  of  the  case  admits  compensation. 
And  by  due  repression  we  intend  such  as  will  effectual- 
ly prevent  all  but  trifling  injuries  (de  minimis  non 
curat  lex),  even  though  the  want  of  such  repression 
may  arise  from  the  powerlessness  of  the  government 
in  question."82  (Westlake:  International  Law,  vol.  I, 
p.  312-3.) 

From  the  point  of  view  of  international  law,  rather 
than  from  that  of  any  particular  state,  we  might  say 
that  recourse  to  preventive  action  is  only  permissible 
when  overt  acts  have  been  committed,  reasonably  in- 
dicative of  an  intention  to  attack,  and  when  there  is 
peril  in  delay. 

When  it  cannot  be  said  that  there  is  peril  to  the  in- 
dependence of  the  state  concerned  in  putting  off  re- 

82Hall  expresses  the  same  idea  less  concisely :  "If  the  safety 
of  a  state  is  gravely  and  immediately  threatened  either  by 
occurrences  in  another  state,  or  aggression  prepared  there, 
which  the  government  of  the  latter  is  unable,  or  professes 
itself  to  be  unable,  to  prevent,  or  when  there  is  an  imminent 
certainty  that  such  occurrences  or  aggression  will  take  place 
if  measures  are  not  taken  to  forestall  them,  the  circumstances 
may  fairly  be  considered  to  be  such  as  to  place  the  right  of 
self-preservation  [prevention]  above  the  duty  of  respecting 
a  freedom  of  action  which  must  have  become  nominal,  on  the 
supposition  that  the  state  from  which  the  danger  comes  is 
willing,  if  it  can,  to  perform  its  international  duties. ' '  (Hall : 
International  Law,  4  ed.,  §  11,  p.  57.) 


PREVENTION  359 

course  to  preventive  action,  the  matter  is  not  one  of 
sufficient  importance  to  interrupt  the  peace  of  na- 
tions.83 

When  overt  acts  have  been  committed,  and  when  de- 
lay would  endanger  the  existence  of  the  state,  inter- 
national law  recognizes  that  the  menaced  state  is  fully 
justified  in  having  recourse  to  preventive  war. 

It  is  not  possible  to  define  in  advance  the  nature  of 
the  circumstances  which  will  in  every  case  constitute 
a  peril  in  delay,  any  more  than  it  is  possible  to  draw  up 
an  exhaustive  list  of  acts  which  may  be  considered  as 
indicative  of  an  intention  to  attack.  In  every  instance 
there  is  a  question  of  fact  to  be  decided  by  an  exami- 


83Lawrence  writes:  "Governments  constantly  submit  to 
small  inconveniences  rather  than  resort  to  hostilities;  and 
an  evil  that  is  not  sufficiently  grave  to  warrant  a  recourse  to 
the  terrible  arbitrament  of  battle  is  not  sufficiently  grave  to 
warrant  intervention.  (T.  J.  Lawrence:  Principles,  4  ed., 
1910,  §  65,  p.  128.) 

Creasy  says:  "We  may  add  that,  inasmuch  as  in  most 
cases  'probability  is  a  man's  guide  of  life'  (Bishop  Butler), 
probabilities  must  be  studied  with  care  proportioned  to  the 
importance  of  the  subject."  (Creasy:  First  Platform  of 
International  Law,  §  289,  p.  283.)  Creasy  supports  this 
statement  by  summarizing  the  words  of  Vattel  which,  as 
written  by  the  latter  were:  "A  nation's  whole  existence  is 
at  stake  when  it  has  a  neighbor  that  is  at  once  powerful  and 
ambitious.  Since  it  is  the  lot  of  men  to  be  guided  in  most 
cases  by  probabilities,  these  probabilities  deserve  their  atten- 
tion in  proportion  to  the  importance  of  the  subject-matter; 
and,  if  I  may  borrow  a  geometrical  expression,  one  is  justified 
in  forestalling  a  danger  in  direct  ratio  to  the  degree  of  prob- 
ability attending  it,  and  to  the  seriousness  of  the  evil  with 
which  one  is  threatened.  If  the  evil  in  question  be  endurable, 
if  the  loss  be  of  small  account,  prompt  action  need  not  be 
taken ;  there  is  no  great  danger  in  delaying  measures  of  self- 
protection  until  we  are  certain  that  there  is  actual  danger  of 
the  evil.  But  suppose  the  safety  of  the  state  is  endangered ; 
our  foresight  can  not  extend  too  far.  Are  we  to  delay  avert- 
ing our  destruction  until  it  has  become  inevitable?"  (Vat- 
tel, Bk.  Ill,  §  44,  Carnegie  translation,  p.  249.) 


360  NON-INTERFERENCE 

nation  of  all  the  circumstances,  which  are  usually  in- 
volved and  complicated.  Nevertheless,  it  is  possible 
to  analyze  and  classify  the  instances  which  have  oc- 
curred in  state  practice  in  order  to  formulate  a  few 
rules  to  serve  as  a  guide  in  reaching  a  correct  conclu- 
sion. We  shall  first  consider  whether  certain  specified 
overt  acts  may  reasonably  be  considered  as  indicative 
of  an  intention  to  attack. 

A  sudden  and  excessive  increase  of  armament  has 
been  considered  by  certain  writers  to  be  sufficient  evi- 
dence of  hostile  designs.  Sir  Robert  Phillimore  re- 
ferring to  G.  F.  de  Martens,  says  that:  " armaments 
suddenly  increased  to  an  extraordinary  amount  are  cal- 
culated to  alarm  other  nations,  whose  liberty  they  ap- 
pear, more  or  less,  according  to  the  circumstances  of 
the  case,  to  menace. "  (Phillimore,  1st  ed.,  vol.  I,  §  212, 
p.  226.) 

But  it  is  not  always  possible  to  decide  whether  the 
military  preparations  are  for  defense  or  offense.  Sir 
Henry  Maine  writes:  "A  state  may  take  what  meas- 
ures it  pleases  for  its  own  defense;  and  a  state  may 
adopt  whatever  commercial  system  it  thinks  most 
likely  to  promote  its  prosperity.  That  a  state  has  these 
powers  is  not  now  denied,  and  would  not,  I  think,  be 
disputed;  but  nevertheless  if  the  existence  of  these 
rights  had  not  now  for  two  centuries  been  affirmed  by 
International  Law,  I  think  they  would  have  turned  out 
to  be  full  of  pretexts  for  war.  Even  at  this  moment 
the  patience  of  states  is  hardly  tried  by  the  way  in 
which  their  neighbors  act  upon  the  principle.  Take 
France  and  Germany.  Rarely  in  the  history  of  the 
world  have  there  been  such  achievements  of  military 
engineering  as  are  exemplified  in  the  fortresses  which 
line  the  long  border  of  the  two  countries.  Every  one 
of  those  fortresses  is  just  as  available  for  attack  as  for 
defense ;  and  knowing  what  men  are,  it  is  really  won- 


PREVENTION  361 

derful  that  no  complaint  has  at  present  been  made  of 
the  mere  fact  of  their  construction.  Take  again  two 
dependencies  of  European  countries,  which  are  really 
great  countries  standing  on  a  footing  of  their  own — 
British  India  and  Asiatic  Russia.  These  are  not  coun- 
tries in  which  fortresses  are,  or  are  likely  to  be,  con- 
structed in  any  large  number.  The  conditions  of  cli- 
mate and  other  difficulties  render  them  defenses  of  no 
great  value;  but  either  power  is  engaged  at  vast  out- 
lay in  creating  a  system  of  railways  within  its  own 
countries;  and  we  can  see  even  now  that  any  fresh 
railway  constructed  within  the  border  of  the  one  coun- 
try gives  rise  at  least  for  criticism  and  private  com- 
plaint on  the  part  of  the  other.  I  do  not  think  we  can 
doubt  that  if  International  Law  had  not  been  perfectly 
clear  and  precise  on  the  subject  of  these  rights,  alleged 
to  flow  from  the  sovereignty  of  states,  they  would  con- 
duce to  every  variety  of  complaint  followed  by  every 
variety  of  war.  What  really  enables  states  to  exercise 
their  sovereignty  in  this  way  is  nothing  but  the  legal 
rule  itself. ' '  ( Sir  Henry  S.  Maine :  International  Law, 
p.  64-5.) 

Creasy,  epitomizing  and  paraphrasing  the  words  of 
Vattel,  approves  of  his  opinion  in  making  arrogance  of 
conduct  on  the  part  of  a  powerful  state  a  justifiable 
ground  for  preventive  action:  "If  the  preponderant 
state  commits  acts  of  injury  against  its  neighbors  or 
any  of  them,  or  if  by  the  arrogance  of  its  pretensions, 
the  tone  of  its  public  dispatches  and  manifestoes,  or  by 
any  other  manner  of  conduct,  beyond  the  mere  increase 
of  its  strength,  it  clearly  threatens  to  attack  or  oppress 
its  neighbors,  then  other  states  are  justified  in  com- 
bining together,  and  in  making  war  on  it,  so  as  to  pre- 
vent it  from  committing  disturbance  of  the  general 
security  of  the  commonwealth  of  civilized  nations,  or  of 
the  security  and  independence  of  any  of  them." 


362  NON-INTERFERENCE 

(Creasy,  First  Platform,  p.  285;  based  upon  Vattel, 
Bk.  ch.  Ill,  p.  349.)  From  the  context  it  is  evident 
that  Vattel  intended  to  offer  advice  as  to  the  prudent 
course  to  follow,  rather  than  lay  down  the  basis  for  a 
legal  presumption. 

When,  however,  a  great  state  gives  evidence  of  an 
intention  to  enter  upon  a  course  of  conquest  with  the 
aim  of  acquiring  universal  dominion,  it  goes  without 
saying  that  the  imminence  of  the  peril  justifies  other 
states  in  declaring  war  to  prevent  the  accomplishment 
of  the  design. 

CONCENTRATION  AND  MOBILIZATION 

The  tremendous  armaments  of  all  the  great  powers 
in  the  past  make  it  difficult  to  characterize  any  such 
military  preparations  as  indicative  of  hostile  designs. 
They  are  generally  justified  on  the  ground  of  their 
necessity  for  the  protection  of  widely  dispersed  posses- 
sions, or  for  the  maintenance  of  the  relative  influence 
of  the  state  in  world  affairs. 

But  when  a  state  makes  military  preparations  which 
are  evidently  a  part  of  offensive  operations  to  be  un- 
dertaken against  a  neighboring  state  that  is  not  itself 
pursuing  a  similar  course,  there  is  good  ground  for  sus- 
pecting the  purpose  of  the  preparations.  Prior  to  the 
war,  Germany  constructed  railway  lines  to  facilitate 
the  concentration  of  troops  on  the  Belgian  frontier. 
This  act  alone  might  have  been  no  more  than  a  reason- 
able preparation  to  prevent  disaster  in  case  France 
should  try  to  surprise  Germany  by  an  attack  through 
Belgium,  but  when  the  German  preparations  were  seen 
to  include  no  corresponding  measures  of  defense  at 
other  points  along  its  frontier  where  it  might  be  ex- 
pected that  France  would  be  most  likely  to  attack,  they 


PREVENTION  363 

took  on  the  aspect  of  a  hostile  concentration  for  an 
unjustifiable  attack  upon  France  through  Belgium.84 

France  might  reasonably  have  made  this  armament 
a  ground  for  preventive  action  against  Germany  had 
she  found  it  expedient  to  do  so. 

Russia,  just  previous  to  1914,  secured  French  loans 
and  employed  them  to  lay  a  network  of  lines  for  mobili- 
zation along  the  German  frontier,  and  to  increase  the 
size  of  her  army.  It  would  have  been  hardly  reason- 
able to  consider  this  a  threatening  concentration  in 
preparation  for  a  surprise  attack  because  it  was  known 
that  Russia  would  still  require  a  period  many  times 
greater  than  Germany  to  effect  her  mobilization.  The 
laying  of  railways  and  the  increase  of  her  army  were  as 
necessary  for  Russia 's  defense  as  for  an  attack. 

But  when  one  of  two  rival  powers  mobilizes  or  con- 
centrates its  forces  in  such  a  manner  that  when  the 


84Col.  Repington,  in  his  "Vestigia,"  1919,  p.  304-7,  refers 
to  his  articles  in  the  London  Times  of  January,  1911,  in  which 
he  discussed  the  transference  of  the  German  base  of  concen- 
tration from  the  Metz  and  Strassburg  line  in  the  direction 
of  the  Belgian  frontier.  In  view  of  the  powerful  German 
defenses  on  the  French  line,  and  the  German  tactics  of  en- 
velopment, Colonel  Repington  said  that  it  was  apparently 
clear  that  "the  axis  of  the  future  attack  on  France  had  been 
shifted  to  the  north,  and  that  a  great,  if  not  the  main  attack 
would  be  based  upon  the  line  Cologne-Coblentz,  and  that  the 
neutrality  of  Belgium  was  threatened  by  this  new  departure 
of  German  strategy." 

He  considered  that  his  reading  of  German  intentions  was 
supported  by  the  German  theories  of  enveloping  attack,  and 
by  the  practice  of  German  generals  at  manoeuvres.  Colonel 
Repington  also  states:  "I  also  showed  that  General  von 
Falkenhausen  in  a  book  which  he  had  recently  published,  had 
calmly  assumed  as  a  matter  of  course  that  the  territory  of 
both  Belgium  and  Holland  would  be  violated  by  the  contend- 
ing armies,  and  that  this  general  had  placed  his  1,250,000  men 
on  a  front  of  250  miles,  which  was  again  much  in  excess  of 
the  length  of  the  French  frontier. ' '  (Lt.  Col.  Charles  a  Court 
Repington:  Vestigia,  1919,  p.  306.) 


364  NON-INTEEFERENCE 

operation  is  accomplished  it  will  have  overcome  certain 
strategical  advantages  which  its  rival  possessed  before 
the  initiation  of  these  operations,  it  is  certain  that  the 
other  will  immediately  have  recourse  to  preventive  war 
unless  it  can  rely  upon  the  fairness  of  the  mobilizing 
power  to  reach  some  equitable  adjustment  of  their 
difference.  It  may,  perhaps,  observe  a  similar  forbear- 
ance when  it  is  assured  of  the  support  of  the  other 
states. 

The  situation  existing  between  Germany  and  Russia 
prior  to  the  outbreak  of  the  war  was  always  one  of 
strategic  tension  due  to  this  inequality  of  rate  of  mo- 
bilization. Since  Germany  could  mobilize  in  four  days, 
while  Russia  was  thought  to  require  three  or  more 
weeks,  it  is  evident  that  the  moment  Russia  commenced 
mobilization,  Germany  would  lose  a  portion  of  her 
strategical  advantage  every  day  that  she  delayed  an 
attack.85 

If  there  was  any  probability  of  war,  it  would  not  have 
been  reasonable  to  expect  Germany  to  do  no  more  than 
to  mobilize  and  patiently  to  wait  while  Russia  used  the 
succeeding  days  to  put  herself  in  battle  array.86 

85See  Stowell's  The  Diplomacy  of  the  War  of  1914,  p.  184f., 
where  this  matter  is  fully  discussed. 

Many  of  the  writers  on  the  War  of  1914  have  failed  to 
understand  the  consequences  of  what  we  might  call  unequal 
mobilization. 

86This  statement  is  not  intended,  by  any  means  to  defend 
the  justice  of  Germany's  declaration  of  war  against  Russia. 
As  I  have  shown  in  my  study  of  the  events  preceding  the  out- 
break of  the  war,  Germany  gave  Russia  good  and  sufficient 
cause  to  believe  that  she  was  making  preparations  for  war, 
and  that  she  intended  to  force  the  issue.  Consequently, 
Russia  was  fully  justified  in  mobilizing,  and  Germany  was 
entirely  to  blame  for  so  acting  as  to  give  Russia  just  cause 
for  recourse  to  preventive  measures. 

From  recent  disclosures  of  Russian  documents,  we  learn 
how  the  Tsar  was  influenced  by  his  love  of  peace  and  his 
confidence  in  the  German  Emperor  to  give  the  insensate  order 


PREVENTION  365 

If  space  would  permit,  we  should  like  to  examine  the 
instances  in  which  this  same  question  of  the  dislocation 
of  the  strategical  equilibrium  has  been  involved.87 

When  increased  armaments  or  strained  international 
relations  compel  a  neighboring  state  to  undertake  by 
way  of  precaution  burdensome  counter-measures,  there 
is  a  tendency  to  regard  the  conduct  of  the  state  that  has 


that  mobilization  be  countermanded  after  it  had  once  begun. 
Any  intelligent  and  patriotic  Russian  officer  must  have  felt 
amply  justified  in  disobeying  such  a  command  issued  by  a 
sovereign  of  the  poor  Tsar's  intelligence. 

8TA  good  illustration  is  furnished  by  the  Russo-Japanese 
War  of  1903-4.  Japan  did  her  best  to  avert  a  conflict,  but 
Russia  was  uncompromising,  and  began  to  dispatch  her  forces 
to  the  Far  East.  Under  the  circumstances,  Japan  was  justi- 
fied in  commencing  by  way  of  preventive  war  the  attack  which 
was  thrust  upon  her.  She  was  not,  however,  entirely  blame- 
less in  doing  so  without  a  clearer  statement  of  her  intention. 
For  a  fuller  consideration  of  this  particular  point,  see  Stowell 
and  Munro:  International  Cases,  vol.  II,  p.  26-34. 

A  similar  situation  arose  when  President  Roosevelt  dis- 
patched the  American  fleet  on  its  tour  round  the  world.  There 
was,  of  course,  no  hostile  intention  in  this  act,  but  the  result 
would  be  to  place  our  ships  in  the  Pacific.  Japan  decided  at 
once  that  she  would  not  make  an  issue  of  the  California  diffi- 
culty, and  relations  improved. 

As  I  write,  the  question  of  the  union  of  the  American  fleet 
in  the  Pacific  is  alluded  to  in  the  press.  When  this  shall 
have  been  accomplished,  it  is  evident  that  Japan's  relative 
position  in  the  Pacific  will  be  less  than  it  was  before.  If 
relations  were  seriously  strained  between  the  two  countries, 
this  act,  although  it  is  legitimately  related  to  the  necessities 
of  American  defense,  might  precipitate  a  conflict. 

When  President  Kruger  sent  his  ultimatum  to  Great 
Britain,  he  was  probably  of  the  opinion  that  if  he  delayed, 
Great  Britain  would  increase  her  forces  in  South  Africa,  and 
that  the  Transvaal  Republic  would  be  obliged  to  fight  at  a 
greater  disadvantage,  or  accept  such  terms  of  settlement  as 
the  British  Government  might  be  willing  to  offer. 


366  NON-INTERFERENCE 

caused  the  inconvenience  as  internationally  repre- 
hensible, and  a  just  ground  for  preventive  action.88 


"With  reference  to  the  news  of  the  disaster  of  Isandlwana 
in  the  Zulu  War,  which  had  recently  reached  London,  Lord 
Blachford,  in  a  letter  dated  February  26,  1879,  wrote : 

"My  expression  about  being  at  war  'with  everybody  every- 
where' was  a  rough  and  unjust  one,  as  is  sometimes  the  case 
when  one  thing  leads  you  to  give  vent  to  a  pent-up  impatience 
about  another. 

"What  was  in  my  mind  was  this :  In  Natal,  in  Afghanistan, 
in  Turkey  we  are  always  assuming — at  least  there  are  a  quan- 
tity of  people  who  assume  that,  because  this  or  that  state  or 
potentate  is  an  inconvenience  to  us,  making  us  keep  more 
troops  or  ships  than  we  like,  or  unsettling  trade,  or  threaten- 
ing the  balance  of  power,  that  is  at  bottom  a  sufficient  reason 
for  trying  to  disable  them,  and  the  only  question  is  one  of 
waiting  for  a  pretext.  This  I  take  it  was  the  old  theory  of 
foreign  policy,  which  I,  for  one,  flattered  myself  was  ex- 
ploded or  nearly  so,  and  it  is  one  which,  if  carried  out  to  its 
full  extent,  would  keep  us  engaged  in  disabling  everybody, 
the  U.  S.  because  they  will  evidently  one  day  threaten  our 
naval  supremacy,  Prussia,  Russia,  France,  with  their  great 
armies  and  ambitious  objects;  Italy  and  Greece  with  their 
prospects  with  regard  to  the  Mediterranean  trade,  and  so  on. 

"And  the  revival  of  this  kind  of  Chauvinism,  jingoism,  or 
whatever  you  choose  to  call  it,  which  is  and  always  has  been 
the  great  enemy  to  the  peace  of  the  world,  keeps  me,  I  confess, 
in  that  state  of  disgust  which  one  feels  at  a  thing  which  you 
find  to  your  surprise  is  not  too  stupid  to  be  formidable,  like 
what  I  suppose  Cobdenites  feel  towards  the  resuscitation  of 
protection. 

"But  of  course  I  must  admit  that  the  question  is  one  of 
degree,  and  that  there  is  a  point  at  which  you  must  take 
measures  to  clip  the  wings  of  a  neighbor  who  is  at  once  power- 
ful and  ill-intentioned."  (Letters  of  Lord  Blachford,  edited 
by  G.  E.  Marindin,  1896,  p.  393.) 

Sir  George  Cornewall  Lewis,  answering  a  letter  from  Lord 
Palmerston,  takes  up  the  same  idea  which  Sir  Robert  Peel 
had  expressed  in  the  House  of  Commons,  (see  Morley's  Life 
of  Cobden,  p.  358),  and  argued  that  it  was  not  a  wise  matter 
of  policy  to  attempt  to  insure  against  all  these  dangers  by 
counter-armament.  Although  the  discussion  in  these  letters 
was  relative  to  a  question  of  national  policy,  its  broad  inter- 
national bearing  justifies  me  in  reproducing  them  here. 


PREVENTION  367 

INNOCENT  GROWTH 

Since  international  law  does  not  authorize  interven- 
tion to  prevent  a  neighboring  power  from  conscious 

"  November  22,  1860. 
"My  dear  Lewis, 

"You  broached  yesterday  evening  what  seems  to  me  a 
political  heresy,  which  I  hope  was  only  a  conversational  para- 
dox, and  not  a  deliberately  adopted  theory.  You  said  you 
dissented  from  the  maxim  that  prevention  is  better  than  cure, 
and  that  you  thought  that,  instead  of  trying  to  prevent  an 
evil,  we  ought  to  wait  till  it  had  happened,  and  should  then 
apply  the  proper  remedy.  Now  I  beg  to  submit  that  the 
prevention  of  evil  is  the  proper  function  of  statesmen  and 
diplomatists;  and  that  the  correction  of  evil  calls  forth  the 
action  of  generals  and  admirals.  Evils  are  prevented  by  the 
pen,  but  are  corrected  by  the  sword.  They  are  prevented  by 
ink-shed,  but  can  be  corrected  only  by  blood-shed.  The  first 
is  an  operation  of  peace ;  the  second,  the  action  of  war. 

"It  seems  to  me  to  be  no  valid  argument  to  say  that  meas- 
ures taken  to  prevent  an  evil  may  by  possibility  lead  to  war, 
when  it  can  be  shown  to  be  far  more  probable  that  the  evil, 
if  it  happens,  will  lead  to  that  result. 

' '  There  are  endless  instances  of  serious  conflicts  which  might 
have  been  prevented  by  timely  vigor  and  negotiation,  and  an 
equal  number  of  cases  in  which  timely  vigor  and  activity  have 
averted  dangerous  consequences.  If  the  Duke  of  Wellington 's 
Government,  in  1830,  had  not  been  swayed  by  the  same 
timidity  which  prevailed  in  the  Cabinet  yesterday,  the  French 
would  not  now  have  had  Algeria — a  possession  which,  when- 
ever we  have  a  war  with  France,  will  give  us  trouble  and 
cause  us  much  annoyance.  If  Lord  Aberdeen's  Government 
had  shown  less  timidity  when  the  Russians  prepared  to  in- 
vade the  Danube  Principalities,  it  is  pretty  certain  that  we 
should  not  have  had  the  Russian  war;  but  it  is  needless  to 
multiply  examples  to  prove  what  appear  to  me  to  be  self- 
evident  propositions. 

"Yours  sincerely, 

"PALMERSTON." 

"Kent  House,  November  23,  1860. 
"My  dear  Lord  Palmerston, 

"  As  a  medical  maxim,  it  is  true  universally  that  prevention 
is  better  than  cure ;  but  it  seems  to  me  that  this  maxim  must 


368  NON-INTERFERENCE 

preparations  for  war  such  as  arming  to  the  teeth  and 
fortifying  its  frontier,  it  cannot  be  expected  that  it 

be  applied  with  discretion  in  political,  especially  in  foreign, 
politics.  If  the  evil  is  proximate  and  certain,  or  highly 
probable,  no  doubt  a  wise  statesman  will,  if  he  can,  prevent 
it.  But  with  respect  to  remote  and  uncertain  evils,  the  sys- 
tem of  insurance  may  be  carried  too  far.  Our  foreign  rela- 
tions are  so  numerous  and  so  intricate,  that  if  we  insure 
against  every  danger  which  ingenuity  can  devise  there  will 
be  no  end  of  our  insurances.  Even  in  private  life  it  is  found 
profitable  for  those  who  carry  on  operations  on  a  large  scale 
not  to  insure.  One  thing,  according  to  the  received  though 
not  very  precise  sajring,  insures  another.  A  man  who  has 
one  or  two  ships,  or  one  or  two  farmhouses,  insures.  But  a 
man  who  has  many  ships,  and  many  farmhouses,  often  does 
not  insure. 

' '  We  keep  in  every  country  of  the  world  a  paid  agent,  often 
of  great  activity  and  intelligence,  whose  time  in  general  is 
only  half  employed,  and  whose  business  it  is  to  frighten  his 
own  government  with  respect  to  the  ambitions  and  encroach- 
ing designs  of  foreign  governments.  I  am  not  seeking  to 
undervalue  the  services  of  diplomatic  and  consular  agents. 
I  know  that,  on  the  whole,  they  are  of  great  benefit  to  the 
country  which  employs  them;  but  it  is  natural  and  proper 
that  they  should  keep  a  sharp  look-out  for  the  machinations 
of  foreign  governments,  and  that  their  imagination  should 
sometimes  be  stronger  than  their  reason.  If  their  advice  was 
listened  to,  we  should  be  perpetually  taking  expensive  pre- 
cautions against  remote  and  problematical  risks. 

' '  Generally,  I  think  that  our  foreign  policy  is  too  timorous ; 
that  we  are  apt  to  be  scared  by  bug-bears,  and  to  underrate 
the  power  of  England,  and  the  fear  of  it  entertained  by  for- 
eign nations.  I  do  not  believe  that  the  possession  of  Algeria 
by  France  is  any  real  disadvantage  to  us.  It  acts  as  a  con- 
stant drain  on  the  military  and  financial  resources  of  France, 
and  in  the  event  of  a  war  would  necessarily  fall  into  our 
hands,  if  we  were  able  to  obtain  and  maintain  the  empire  of 
the  sea.  The  possession  of  Egypt  and  Malta  did  nothing  for 
France  in  the  late  war. 

"If  an  evil  is  certain  and  proximate,  and  can  be  averted 
by  diplomacy,  then  undoubtedly  prevention  is  better  than 
cure.  But  if  the  evil  is  remote  and  uncertain,  then  I  think 
it  better  not  to  resort  to  preventive  measures,  which  insure 
a  proximate  and  certain  mischief.  The  evil  may  probably 
never  occur ;  the  cure  may  perhaps  be  simple  and  inexpensive, 


PREVENTION  369 

will  permit  interference  with  a  state's  enjoyment  of  its 
right  to  grow  and  to  develop  its  resources,  even  though 
the  increase  of  territory  and  resources  should  give  a 
preponderance  of  power. 

Grotius  in  his  great  work,  "War  and  Peace,"  pub- 
lished in  Latin  in  1625,  wrote :  "There  is  an  intolerable 


and  may  not  imply  hostilities.     It  seems  to  me  that  our  for- 
eign relations  are  on  too  vast  a  scale  to  render  it  wise  for  us 
to  insure  systematically  against  all  risks;    and  if  we  do  not 
insure  systematically,  we  do  nothing." 
"Believe  me, 

' '  Yours  very  sincerely, 

"G.  C.  LEWIS." 
(Ashley's  Life  of  Palrnerston,  vol.  II,  1876,  p.  331-4.) 

The  same  opinion  was  held  by  Cobden,  who,  Morley  writes, 
"opposed  war,  because  war  and  the  preparation  for  it  con- 
sumed the  resources  which  were  required  for  the  improvement 
of  the  temporal  condition  of  the  population.     Sir  Robert  Peel 
had  anticipated  him  in  pressing  upon  Parliament  the  danger 
to  European  order  arising  from  military  expenditure.     Heavy 
military   expenditure,   he   said,   meant   heavy   taxation,   and 
heavy  taxation  meant  discontent  and  revolution.     That  wise 
statesman  had  courageously  repudiated  the  old  maxim,  Bellum 
para  si  pacem  veils.       A  maxim  that  admits  of  more  con- 
tradiction, he  said,  or  one  that  should  be  received  with  greater 
reserve,  never  fell  from  the  lips  of  man.     What  is  always  still 
more  important,  Peel  was  not  afraid  to  say  that  it  is  im- 
possible to  secure  a  country  against  all  conceivable  risks.     If 
in  time  of  peace  you  insist  on  having  all  the  colonial  garrisons 
up  to  the  standard  of  complete  efficiency,  and  if  every  fortifi- 
cation is  to  be  kept  in  a  state  of  perfect  repair,  then  no  amount 
of  annual  expenditure  can  ever  be  sufficient.     If  you  accept 
the  opinions  of  military  men,  who  tell  a  Minister  that  they 
would  throw  upon  him  the  whole  responsibility  in  the  event 
of  a  war  breaking  out,  and  predict  the  loss  of  this  or  the 
other  valuable  possession,  then  the   country  must  be  over- 
whelmed by  taxation.     It  is  inevitable  that  risks  should  be 
run.     Peel's  declaration  was,  and  must  at  all  times  remain, 
the  language  of  common  sense,  and  it  furnished  the  key  to 
Cobden 's   characteristic   attitude   towards   a    whole   class   of 
political  questions  where  his  counsels  have  been  most  per- 
sistently disregarded."     (Morley:    Life  of  Richard  Cobden, 
1881,  p.  357-8.) 

24 


370  NON-INTERFERENCE 

doctrine  in  some  writers,  that  by  the  Law  of  Nations 
we  may  rightly  take  arms  against  a  power  which  is  in- 
creasing, and  may  increase,  so  as  to  be  dangerous.  Un- 
doubtedly, in  deliberating  of  war,  this  may  come  into 
consideration,  not  as  a  matter  of  justice,  but  as  a  mat- 
ter of  utility;  so  that  if  the  war  be  just  on  other  ac- 
counts, it  may,  on  this  account,  be  prudent ;  and  this  is 
what  the  arguments  of  authors  come  to.  But  that  the 
possibility  of  suffering  force  gives  us  the  right  of  using 
force,  is  contrary  to  all  notion  of  equity.  Such  is 
human  life,  that  we  are  never  in  complete  security. 
We  must  seek  protection  against  uncertain  fears  from 
Divine  Providence,  and  from  blameless  caution,  not 
from  force."  (Grotius,  Bk.  II,  ch.  I,  §  XVII,  Whe- 
well's  translation,  vol.  I,  p.  224-5.) 

Emer  de  Vattel,  in  his  Law  of  Nations,  1758,  ex- 
pressed a  similar  view:  "We  are  here  presented  with 
a  celebrated  question  which  is  of  the  greatest  impor- 
tance. It  is  asked  whether  the  aggrandizement  of  a 
neighboring  state,  in  consequence  of  which  a  nation 
fears  that  it  will  one  day  be  oppressed,  is  a  sufficient 
ground  for  making  war  upon  it ;  whether  a  nation  can 
with  justice  take  up  arms  to  resist  the  growing  power  of 
that  state,  or  weaken  the  state,  with  the  sole  object  of 
protecting  itself  from  the  dangers  with  which  weak 
states  are  almost  always  threatened  from  an  over- 
powerful  one.  The  question  presents  no  difficulties  to 
the  majority  of  statesmen;  it  is  more  perplexing  for 
those  who  seek  at  all  times  to  unite  justice  with  pru- 
dence. 

' '  On  the  one  hand,  a  state  which  increases  its  power 
by  all  the  efforts  of  a  good  government  does  nothing 
but  what  is  praiseworthy;  it  fulfils  its  duties  toward 
itself  and  does  not  violate  those  which  it  owes  to  other 
nations.  The  sovereign  who  by  inheritance,  by  a  free 
election,  or  by  any  other  just  and  proper  means,  unites 


PREVENTION  371 

new  provinces  or  entire  kingdoms  to  his  states,  is 
merely  acting  on  his  right,  and  wrongs  no  one.  How 
would  it  be  right  to  attack  a  state  which  increases  its 
power  by  lawful  means  ?  A  nation  must  have  received 
an  injury,  or  be  clearly  threatened  with  one  before  it  is 
authorized  to  take  up  arms  as  having  a  just  ground  for 
war.  On  the  other  hand,  we  know  only  too  well  from 
sad  and  frequent  experience  that  predominant  states 
rarely  fail  to  trouble  their  neighbors,  to  oppress  them, 
and  even  to  subjugate  them  completely,  when  they  have 
an  opportunity  of  doing  so  with  impunity.  Europe  was 
on  the  point  of  being  enslaved  for  lack  of  timely  op- 
position to  the  growing  power  of  Charles  V.  Must  we 
await  the  danger?  Must  we  let  the  storm  gather 
strength  when  it  might  be  scattered  at  its  rising! 
Must  we  suffer  a  neighboring  state  to  grow  in  power 
and  await  quietly  until  it  is  ready  to  enslave  us?  Will 
it  be  time  to  defend  ourselves  when  we  are  no  longer 
able  to  ?  Prudence  is  a  duty  incumbent  upon  all  men, 
and  particularly  upon  the  rulers  of  nations,  who  are 
appointed  to  watch  over  the  welfare  of  an  entire  people. 
Let  us  try  to  solve  this  important  question  conformably 
to  the  sacred  principles  of  the  Law  of  Nature  and  of 
Nations.  It  will  be  seen  that  they  do  not  lead  to  weak 
scruples,  and  that  it  is  always  true  to  say  that  justice  is 
inseparable  from  sound  statesmanship. 

"First  of  all,  let  us  observe  that  prudence,  which  is 
certainly  a  virtue  very  necessary  in  sovereigns,  can 
never  counsel  the  use  of  unlawful  means  in  order  to 
obtain  a  just  and  praiseworthy  end.  Do  not  object 
here  that  the  welfare  of  the  people  is  the  supreme  law 
of  the  state;  for  the  welfare  of  the  people,  the  com- 
mon welfare  of  nations,  forbids  the  use  of  means  that 
are  contrary  to  justice  and  honor.  Why  are  certain 
means  unlawful?  If  we  look  at  the  matter  closely,  if 
we  go  back  to  first  principles,  we  shall  see  that  it  is 


372  IsON-INTERFEKENCE 

precisely  because  the  introduction  of  such  means  would 
be  hurtful  to  human  society,  a  source  of  evil  to  all  na- 
tions. Note  in  particular  what  we  said  in  treating  of 
the  observance  of  justice  (Book  II,  ch.  V).  It  is,  there- 
fore, to  the  interest  and  even  to  the  welfare  of  all  na- 
tions that  we  must  hold  as  a  sacred  principle  that  the 
end  does  not  justify  the  means.  And  since  war  is  only 
permissible  in  order  to  redress  an  injury  received,  or 
to  protect  ourselves  from  an  injury  with  which  we  are 
threatened,  it  is  a  sacred  rule  of  the  Law  of  Nations 
that  the  aggrandizement  of  a  state  cannot  alone  and  of 
itself  give  any  one  the  right  to  take  up  arms  to  resist 
it."  (Vattel:  Bk.  Ill,  §§  42-43 ;  Carnegie  translation, 
p.  248.) 

The  most  eminent  of  all  of  the  modern  international 
jurists,  John  Westlake,  nearly  three  centuries  after 
Grotius,  has  given  us  a  concise  statement  which  covers 
the  right  to  grow  and  to  arm :  *  *  The  natural  growth  of 
a  nation  in  power,  and  even  the  increase  of  its  arma- 
ments in  a  fair  proportion  to  its  population  and  wealth 
and  to  the  interests  which  it  has  to  defend,  must  be 
looked  on  without  jealousy,  and  without  any  attempt  to 
check  it,  by  those  nations  which  by  an  inferiority  of 
character  or  situation  are  destined  to  a  decline  in  rela- 
tive power."89  (Westlake:  International  Law,  vol.  I, 
1910,  p.  316-7.) 

The  protection  of  the  general  prosperity  of  nations 
is  the  primary  aim  of  international  law.  It  can  never 
seek  to  arrest  progress  and  prosperity  in  order  to  fa- 


89A  few  of  the  authorities  who  express  the  same  view  that 
innocent  growth  is  not  a  just  ground  of  intervention  are: 
G.  F.  de  Martens:  Precis,  Bk.  IV,  ch.  I,  §  120;  Kliiber, 
Europaisches  Volkerrecht  §  41;  Wheaton;  Elements,  Part 
II,  ch.  I,  §  3 ;  Woolsey :  International  Law,  1860,  §  42,  p.  91 ; 
Twiss;  Law  of  Nations,  vol.  I,  §  101,  p.  147-8 ;  Crease^' :  First 
Platform,  §  163,  p.  152-3. 


PREVENTION  373 

cilitate  the  task  of  preventing  possible  injustice,  but 
must  hope  to  find  some  other  means  of  restraining  the 
abuses  of  power.  The  right  of  every  independent 
state  to  employ  the  means  at  its  disposal  to  develop  its 
resources  and  to  arm  for  protection  against  attack  is 
as  clear  as  any  right  of  international  law. 

CONSTRUCTIVE  ATTACK 

To  justify  preventive  action,  it  is  not  essential  that 
the  hostile  preparations  should  be  undertaken  by  the 
government  itself.  Whenever  a  government  lends  its 
countenance  to  individuals  who  are  making  hostile 
preparations  within  its  territory,  or  even  when  the 
government  does  no  more  than  fail  to  fulfil  the  obli- 
gations which  international  law  imposes  upon  it  to 
police  its  territory  and  to  suppress  the  fitting  out  of 
hostile  expeditions,  it  becomes  responsible  for  the 
illicit  acts  which  it  has  tolerated,  or  failed  to  prevent.90 

90Phillimore  has  accurately  discussed  this  principle : 
"In  all  cases  where  the  territory  of  one  nation  is  invaded 
from  the  country  of  another, — whether  the  invading  force  be 
composed  of  the  refugees  of  the  country  invaded,  or  of  sub- 
jects of  the  other  country,  or  of  both — the  government  of  the 
invaded  country  has  a  right  to  be  satisfied  that  the  country 
from  which  the  invasion  has  come,  has  neither  by  sufferance 
nor  reception  (patientid  aut  receptu)  knowingly  aided  or 
abetted  it.  She  must  purge  herself  of  both  these  charges, 
otherwise,  if  the  cause  be  the  feebleness  of  her  government, 
the  invaded  country  is  warranted  in  redressing  her  own 
wrong,  by  entering  the  territory,  and  destroying  the  prepara- 
tions of  war  therein  made  against  her ;  or,  if  these  have  been 
encouraged  by  the  government,  then  the  invaded  country  has 
a  strict  right  to  make  war  upon  that  country  herself ;  because 
she  has  afforded  not  merely  an  asylum,  but  the  means  of  hos- 
tility to  the  foes  of  a  nation,  with  whom  she  was  at  peace.  For 
it  never  can  be  maintained,  that  however  much  a  state  may 
suffer  from  piratical  [sic]  incursions,  which  the  feebleness 
of  the  executive  government  of  the  country  whence  they  issue 
renders  it  incapable  of  preventing  or  punishing,  that,  until 


374  NON-INTERFERENCE 

No  doubt  the  best  intentioned  state  cannot  always 
prevent  the  abuse  of  its  territory  and  its  use  as  a  base 
for  hostile  expeditions  against  a  friendly  state.  But  in 
that  event,  as  we  have  seen,  the  state  whose  security  is 
threatened  has  the  right  to  intervene  directly  by  way 
of  self-help,  and  to  remove  the  menace  to  its  security. 
Should  the  state  who  was  unable  to  police  its  own  terri- 
tory attempt  to  oppose  this  reasonable  recourse  to  pre- 
ventive action,  it  becomes  itself  responsible  for  the 
hostile  preparations  made  on  its  territory,  and  pre- 
ventive war  then  becomes  justifiable  against  the  gov- 
ernment itself.91 

When  a  state  feels  itself  menaced  by  plots  and  prepa- 
rations in  a  neighboring  state,  it  is  inclined  to  hold  the 
latter  responsible,  even  though  the  government  itself  is 

such  government  shall  voluntarily  acknowledge  the  fact,  the 
injured  State  has  no  right  to  give  itself  that  security,  which 
its  neighbor's  government  admits  that  it  ought  to  enjoy,  but 
which  that  government  is  unable  to  guarantee. 

"It  must  be  admitted  that  there  is  a  practical  acknowledg- 
ment of  such  inability,  which,  as  much  as  a  voluntary  confes- 
sion, justifies  the  offended  country  in  a  course  of  action  which 
would  under  other  circumstances  be  unlawful."  (Philli- 
more:  International  Law,  vol.  1, 1854,  §  218,  p.  230.) 

Phillimore  supports  his  own  opinion  by  a  quotation  from 
Burlemaqui  which  was  itself  based  upon  the  opinion  of 
Grotius  (Bk.  II,  ch.  xxi)  and  from  Heineccius  (Praelectiones) 
on  the  same  chapter  of  Grotius :  ' '  Now  it  is  presumed  that  a 
sovereign  knows  what  his  subjects  openly  and  frequently  com- 
mit; and  as  to  his  power  of  hindering  the  evil,  this  likewise 
is  always  presumed,  unless  the  want  of  it  be  clearly  proved." 

This  matter  is  treated  by  Vattel  with  his  customary  elegance 
of  expression,  and  with  a  juridical  accuracy  which  this  author 
does  not  always  display.  (Vattel,  Bk.  II,  §  72-8.) 

91See  discussion  of  self-help  §  1  above;  see  also  Hall:  In- 
ternational Law,  4  ed.,  §  84,  p.  282 ;  ibid,  §  91,  p.  299. 

The  same  principle  justifies  the  use  of  force  against  vessels 
under  another  flag  when  they  are  engaged  in  filibustering  ex- 
peditions. (See  Westlake:  International  Law,  vol.  I,  p.  168- 
172,  313.) 


PREVENTION  375 

not  implicated  and  when  it  has  done  its  best  to  police 
its  territory.  Dissatisfaction  with  the  result  some- 
times leads  the  menaced  state  to  demand  that  more 
stringent  laws  be  passed  to  permit  of  a  greater  vigi- 
lance. The  other  may  be  justified,  however,  in  consid- 
ering that  the  existing  regulations  go  as  far  as  is  pos- 
sible without  interfering  with  the  rights  of  its  citizens 
and  subjecting  them  to  unreasonable  restrictions.  The 
precedents  of  international  practice  have  to  be  con- 
sulted for  the  purpose  of  defining  the  obligations  which 
international  law  imposes  upon  every  state  for  the 
police  of  its  territory.  But  when  a  government  re- 
frains from  using  the  authority  which  it  possesses,  its 
conduct  is  either  so  unfriendly  or  so  culpably  negligent 
as  to  render  it  directly  responsible  for  the  hostile  acts 
preparing  against  its  neighbor,  and  to  justify  the  latter 
in  intervening  to  compel  the  delinquent  state  to  reform 
its  conduct.92 


.  92Westlake  justifies  intervention  in  the  internal  affairs  of 
another  state  to  prevent  attack  and  he  defines  attack  as  we 
have  said  to  include  all  violation  of  the  legal  rights  of  a  state 
or  of  its  subjects,  "whether  by  the  offending  state  or  by  its 
subjects  without  due  repression  by  it,  or  ample  compensation 
when  the  nature  of  the  case  admits  compensation.  And  by 
due  repression  we  intend  such  as  will  effectually  prevent  all 
but  trifling  injuries  (de  minimis  non  curat  lex),  even  though 
the  want  of  such  repression  may  arise  from  the  powerlessness 
of  the  government  in  question."  (Westlake:  International 
Law,  vol.  I,  p.  313.) 

If,  in  place  of  this  juridical  opinion,  we  were  to  accept 
the  extreme  view  of  Funck-Brentano  and  Sorel,  we  should  be 
forced  to  conclude  that  any  state  could  make  an  excuse  of  the 
defects  of  its  own  legislation  to  avoid  responsibility.  These 
authors  write:  "Intervention  most  frequently  occurs  when 
the  actions  of  the  government  of  a  state  or  of  its  subjects 
are  made  the  basis  of  a  diplomatic  complaint.  The  motives 
for  this  intervention  are  usually  attacks  in  the  press  against 
foreign  governments,  and  the  existence  of  secret  societies  and 
conspiracies.  As  long  as  a  state  only  demands  from  another 
state  the  strict  and  loyal  enforcement  of  the  latter 's  laws,  it 


376  NON-INTERFERENCE 

Phillimore  discussing  this  matter  remarks:  "Upon 
the  same  principle,  though  a  nation  has  a  right  to  af- 
ford refuge  to  the  expelled  governors,  or  even  the  lead- 
ers of  rebellion  flying  from  another  country,  she  is 
bound  to  take  all  possible  care  that  no  hostile  expedition 
is  concerted  in  her  territories,  and  to  give  all  reason- 
able guarantees  upon  this  subject,  in  answer  to  the  re- 
monstrances of  the  nation  from  which  the  exiles  have 
escaped.  During  the  time  when  the  residence  of  the 
Pretender  in  France  within  the  vicinity  of  England, 
gave  reasonable  alarm  to  the  British  Government,  the 
removal  of  his  residence  to  a  place  of  less  danger  to 

does  not  exceed  its  rights,  and  does  not  commit  an  act  of 
intervention  in  the  interior  affairs  of  the  state;    it  merely 
asks  for  the  respect  which  is  due  it  in  the  form  which  is  com- 
patible with  the  constitution  of  the  state  to  whom  the  request 
is  addressed.     Intervention  begins  when  the  demanding  state 
declares  that  the  institutions  of  the  foreign  state  are  not  ade- 
quate to  assure  the  state  making  the  representations  the  re- 
spect to  which  it  has  a  right  and  the  security  of  which  it  is  in 
need,  and  when  it  demands  a  modification.     Even  in  diplo- 
matic form,  such  an  intervention  is  a  violation  of  the  law  of 
nations  in  time  of  peace.     It  is  so  clearly  a  violation,  and  is 
based  so  truly  upon  force  ancl  upon  force  alone,  that  there  is 
no  case  in  which  it  has  been  employed  other  than  by  strong 
states  against  weaker  states ;  nevertheless,  it  is  the  weak  states 
which  are  most  often  likely  to  find  it  necessary  to  employ  it : 
the  press  and  secret  societies  of  the  great  states  are  much  more 
dangerous  to  the  security  of  the  small  states  than  the  journal- 
ists and  conspirators  in  the  little  states  are  to  the  great." 
( Translated  from  Funck-Brentano  et  Sorel :   Precis  du  Droit 
des  Gens,  p.  218-9.)     This  exaggerated  statement  is  of  value 
as  an  indication  of  the  basis  of  the  sovereign  right  of  each 
state  to  adhere  to  its  own  institutions. 

Sir  George  Cornewall  Lewis  (Extradition,  1859,  p.  65) 
declares  that  "the  law  of  England  recognizes  the  principle  of 
protecting  a  foreign  government  by  its  own  municipal  regu- 
lations." In  footnotes,  he  gives  several  references. 

Phillimore  (1  ed.,  Vol.  I,  §  213,  p.  227),  well  states  the  right 
of  self-help  in  the  case  of  culpable  negligence  and  asylum  for 
hostile  expeditions,  and  (Ibid,  §  214,  p.  227)  quotes  Vattel. 
(Vol.  Ill,  ch.  VII,  §  133.) 


PREVENTION  377 

Great  Britain  formed  the  subject  of  the  stipulations 
of  various  Treaties.  If  the  hostile  expedition 
of  the  present  Emperor  of  the  French  in  1842,  against 
the  then  existing  monarchy  of  France,  had  taken  place 
with  the  sanction  of  connivance  of  the  British  Govern- 
ment, England  would  have  been  guilty  of  a  very  gross 
violation  of  International  Law;  and  she  showed  at 
the  time  a  wise  and  just  anxiety  to  purge  herself  from 
any  such  suspicion.  But  though  the  strange  and  al- 
most unparalleled  vicissitudes  of  fortune  afterwards 
compelled  the  very  monarch,  against  whom  that  ex- 
pedition had  been  directed,  to  take  refuge  in  this  coun- 
try, the  then  representative  of  the  executive  of  France, 
though  the  leader  of  that  expedition,  had  no  cause  of 
complaint,  either  on  this  ground,  or  because  other  po- 
litical refugees,  professing  all  shades  and  kinds  of 
opinion,  resided  in  safety  in  England;  which,  before 
it  was  their  refuge,  had  so  often  been,  and  indeed  still 
is,  the  theme  of  their  vituperation."93  (Sir  Robert 
Phillimore:  Commentaries  Upon  International  Law, 
1854,  vol.  I,  §  217,  p.  228-230.) 

Condorcet,  in  an  exposition  of  motives,  prepared  in 
1792  for  the  French  National  Assembly,  declared :  ' '  By 
protecting  the  assemblages  of  the  emigrants,  by  per- 
mitting them  to  menace  our  frontiers,  by  showing 
troops  in  readiness  to  second  them  on  the  first  success, 
by  preparing  a  retreat  for  them,  by  persisting  in  a 
threatening  league,  the  King  of  Hungary  obliged 
France  to  make  preparations  of  defense  ruinous  in 
their  expense,  exhausted  her  finances,  encouraged  the 
audacity  of  the  conspirators  dispersed  through  the  de- 
partments, excited  uneasiness  among  the  citizens,  and 
thus  fomented  in  them  and  perpetuated  trouble.  Never 


93The  reader  will  remember  that  we  discussed  above,  under 
§  8  (f)  this  question  of  political  asylum. 


378  NON-INTERFERENCE 

did  hostilities  more  really  justify  war ;  and  to  declare 
was  only  to  repel  it."  (Annual  Register,  vol.  34, 1792, 
p.  265.) 

HOSTILE  PROPAGANDA 

An  interesting  question  arises  when  the  action  al- 
leged to  be  a  menace  is  confined  to  hostile  propaganda, 
such  as  an  incitement  to  revolt.  Vattel  was  right :  "It 
is  in  violation  of  the  Law  of  Nations  to  call  on  subjects 
to  revolt  when  they  are  actually  obeying  their  sov- 
ereign, although  complaining  of  his  rule."  (Vattel, 
Bk.  II,  §  56,  Carnegie  translation,  p.  131.)  Such  con- 
duct is  a  violation  of  the  sovereign  rights  of  a  friendly 
state,  and  justifies  whatever  reasonable  action  may  be 
necessary  to  secure  redress.  Nevertheless,  it  is  not 
customary  for  the  great  civilized  states  to  make  acts  of 
propaganda  a  ground  of  complaint,  provided  that  none 
but  private  citizens  participate  in  them,  and  that  the 
acts,  however  hostile  in  sentiment,  are  confined  to  dem- 
onstrations such  as  parades,  mass  meetings,  etc.94 

Professor  Manning  and  many  others  have  applied 
this  rule  to  the  French  Convention's  proclamation  of 
November  19, 1792.  He  says :  "When  the  French  Con- 
vention announced  themselves  as  the  enemies  of  all 
constituted  authorities,  and  proclaimed,  in  November, 
1792,  that  'they  would  grant  fraternity  and  succor  to 


94The  Greek  war  of  independence,  the  Polish  insurrections 
of  1832  and  1863,  the  Hungarian  uprising  of  1849  (see  Moore's 
Principles  of  American  Diplomacy,  p.  202f),  and  the  Boer 
War  of  1898-99,  called  forth  mass  meetings  and  very  warm 
expressions  of  public  opinion  throughout  the  civilized  world. 
In  as  far  as  these  demonstrations  were  merely  popular,  they 
offered  no  ground  for  protest  on  the  part  of  the  governments 
concerned,  but  could  only  serve  as  a  helpful  warning  of  a 
general  disapprobation  which  any  wise  government  would 
take  into  account. 


PREVENTION  379 

any  people  who  were  disposed  to  recover  their  lib- 
erty, m  it  cannot  be  doubted  that,  if  there  were  a  proba- 
bility of  these  declarations  being  carried  into  effect,  it 
was  not  only  the  right,  but  the  duty,  of  neighboring 
governments  to  arm  in  their  own  defense ;  and,  if  there 
were  no  other  method  of  averting  the  threatened  ag- 
gression, encounter  the  partial  evil  to  the  community, 
war,  great  as  that  evil  is,  rather  than  submit  to  that 
total  ruin  of  the  community  which  must  result  from  the 
forcible  propagation  of  anarchy."  (Commentaries  on 
the  Law  of  Nations,  revised  by  Sheldon  Amos,  p.  134.) 

"  'If,1  wrote  Mr.  Canning  in  1823,  'if  the  end  of  the 
last  and  the  beginning  of  the  present  century  saw  all 
Europe  combined  against  France,  it  was  not  on  account 
of  the  international  changes  which  France  thought 
necessary  for  her  own  political  and  civil  reformation, 
but  because  she  attempted  to  propagate  first  her  prin- 
ciples and  afterwards  her  dominion  by  the  sword.' 
(Quoted  from  Bernard:  Non-intervention,  p.  12-13.) 

Lord  Grey,  discussing  non-intervention  [interfer- 
ence], said  in  1821  (Parliamentary  Debates,  House  of 
Lords,  Feb.  19,  1821,  cited  by  Bernard,  Non-interven- 
tion, p.  13) :  "When  the  government  of  one  nation 
holds  out  encouragement  to  the  subjects  of  another  to 
resist  its  authority,  or  offers  assistance  to  rebellious 
projects,  a  state  of  things  occurs  which  admits  a  de- 
parture from  the  general  principles  of  international 
law."  Professor  Bernard  comments:  "In  truth  it  is 
no  departure  from  them,  for  the  revolution  by  becom- 
ing aggressive  has  ceased  to  be  'internal,'  and  the 
measures  of  self-defense  which  it  justifies  are  not  inter- 
vention [interference],  but  war."  (Bernard:  Non- 
intervention, 1860,  p.  13.) 


95Manning's  reference  is  to  Alison,  Hist.  French  Rev.  I, 
433,  434. 


380  NON-INTERFERENCE 

Prior  to  the  outbreak  of  the  War  of  1914,  Austria- 
Hungary  complained  that  the  Servian  Government  en- 
couraged the  propaganda  of  the  Servian  press  and  of 
the  patriotic  societies  for  the  annexation  of  parts  of 
the  Austrian  Empire  inhabited  by  people  of  the  Ser- 
vian race.  It  was  probably  impossible  for  the  Servian 
Government  to  have  attempted  to  suppress  a  movement 
so  widespread,  or  to  have  openly  repudiated  it.  But 
it  was  not  shown  that  the  government  did  not  do  all  in 
its  power  to  keep  the  agitation  within  such  reasonable 
limits  as  it  was  able.  No  doubt  hostile  propaganda 
such  as  prevailed  in  Servia  might  have  been  considered 
a  ground  of  remedial  self-help,  even  to  the  extent  of 
war,  had  Austria 's  security  demanded  it.  But  in  view 
of  Austria's  overwhelming  superiority,  this  justifi- 
cation was  lacking.  A  respect  for  the  peace  of  Europe 
might  also  have  been  expected  to  stay  Austria's  re- 
course to  force.96 

The  very  active  propaganda  carried  on  by  the  Bolshe- 
viki  of  Russia  is  an  excellent  example  to  illustrate  these 
principles,  and  in  this  connection  it  will  be  of  interest 
to  examine  that  portion  of  Secretary  Colby's  note  of 
August  10,  1920,  in  which  he  took  occasion  to  discuss 
the  grounds  upon  which  the  Wilson  Administration  re- 
fused to  recognize  or  have  any  dealings  with  the  Soviet 
Government  of  Russia :  *  *  It  is  not  possible  for  the  gov- 
ernment of  the  United  States  to  recognize  the  present 
rulers  of  Russia  as  a  government  with  which  the  rela- 
tions common  to  friendly  government  can  be  main- 
tained. This  conviction  has  nothing  to  do  with  any 
particular  political  or  social  structure  which  the  Rus- 
sian people  themselves  may  see  fit  to  embrace.  It  rests 
upon  a  wholly  diff erent  set  of  facts.  These  facts,  which 

96See  discussion  above  of  Hostile  Expeditions.  The  Austro- 
Servian  question  is  examined  in  E.  C.  Stowell:  Diplomacy 
of  the  War  of  1914,  p.  77-8. 


PREVENTION  381 

none  dispute,  have  convinced  the  Government  of  the 
United  States,  against  its  will,  that  the  existing  regime 
in  Russia  is  based  upon  the  negation  of  every  principle 
of  honor  and  good  faith,  and  every  usage  and  conven- 
tion, underlying  the  whole  structure  of  international 
law;  the  negation,  in  short,  of  every  principle  upon 
which  it  is  possible  to  base  harmonious  and  trustful 
relations,  whether  of  nations  or  of  individuals.  The 
responsible  leaders  of  the  regime  have  frequently  and 
openly  boasted  that  they  are  willing  to  sign  agreements 
and  undertakings  with  foreign  powers  while  not  having 
the  slightest  intention  of  observing  such  undertakings 
or  carrying  out  such  agreements.  This  attitude  of 
disregard  of  obligations  voluntarily  entered  into,  they 
base  upon  the  theory  that  no  compact  or  agreement 
made  with  a  non-Bolshevist  government  can  have  any 
moral  force  for  them.  They  have  not  only  avowed  this 
as  a  doctrine,  but  have  exemplified  it  in  practice.  In- 
deed, upon  numerous  occasions  the  responsible  spokes- 
men of  this  power,  and  its  official  agencies,  have  de- 
clared that  it  is  their  understanding  that  the  very  ex- 
istence of  Bolshevism  in  Russia,  the  maintenance  of 
their  own  rule,  depends,  and  must  continue  to  depend, 
upon  the  occurrence  of  revolutions  in  all  other  great 
civilized  nations,  including  the  United  States,  which 
will  overthrow  and  destroy  their  governments  and  set 
up  Bolshevist  rule  in  their  stead.  They  have  made  it 
quite  plain  that  they  intend  to  use  every  means,  in- 
cluding, of  course,  diplomatic  agencies,  to  promote 
such  revolutionary  movements  in  other  countries. 

"It  is  true  that  they  have  in  various  ways  expressed 
their  willingness  to  give  *  assurances'  and  'guarantees' 
that  they  will  not  abuse  the  privileges  and  immunities 
of  diplomatic  agencies  by  using  them  for  this  purpose. 
In  view  of  their  own  declarations,  already  referred  to, 
such  assurances  and  guarantees  cannot  be  very  seri- 


382  NON-INTERFERENCE 

ously  regarded.  Moreover,  it  is  within  the  knowledge 
of  the  Government  of  the  United  States  that  the  Bol- 
shevist Government  is  itself  subject  to  the  control  of 
a  political  faction,  with  extensive  international  rami- 
fications through  the  Third  Internationale,  and  that 
this  body,  which  is  heavily  subsidized  by  the  Bolshevist 
Government  from  the  public  revenues  of  Russia,  has 
for  its  openly  avowed  aim  the  promotion  of  Bolshevist 
revolutions  throughout  the  world.  The  leaders  of  the 
Bolsheviki  have  boasted  that  their  promises  of  non- 
interference with  other  nations  would  in  no  wise  bind 
the  agents  of  this  body.  There  is  no  room  for  reason- 
able doubt  that  such  agents  would  receive  the  support 
and  protection  of  any  diplomatic  agencies  the  Bolshe- 
viki might  have  in  other  countries.  Inevitably,  there- 
fore the  diplomatic  service  of  the  Bolshevist  Govern- 
ment would  become  a  channel  for  intrigues  and  the 
propaganda  of  revolt  against  the  institutions  and  laws 
of  countries,  with  which  it  was  at  peace,  which  would 
be  an  abuse  of  friendship  to  which  enlightened  gov- 
ernments cannot  subject  themselves. 

"In  the  view  of  this  Government,  there  cannot  be 
any  common  ground  upon  which  it  can  stand  with  a 
power  whose  conceptions  of  international  relations  are 
so  entirely  alien  to  its  own,  so  utterly  repugnant  to  its 
moral  sense.  There  can  be  no  mutual  confidence  or 
trust,  no  respect  even,  if  pledges  are  to  be  given  and 
agreements  made  with  a  cynical  repudiation  of  their 
obligations  already  in  the  mind  of  one  of  the  parties. 
We  cannot  recognize,  hold  official  relations  with,  or 
give  friendly  reception  to  the  agents  of  a  government 
which  is  determined  and  bound  to  conspire  against  our 
institutions ;  whose  diplomats  will  be  the  agitators  of 
dangerous  revolt;  whose  spokesmen  say  that  they 
sign  agreements  with  no  intention  of  keeping  them." 


PREVENTION  383 

(Printed  in  International  Conciliation  Pamphlet,  No. 
155,  October,  1920.) 

In  a  note  of  August  14,  1920,  the  French  Charge  at 
Washington  reiterated  the  opinions  expressed  by  Sec- 
retary Colby,  and  declared  that  his  government  could 
have  no  official  relations  with  the  present  rulers  of 
Eussia.  He  also  stated  that  after  mature  examination, 
the  French  Government  had  "recognized  a  Russian 
Government  which  declares  that  it  accepts  the  same 
principles"  which  means  as  the  context  shows,  the 
same  as  those  expressed  by  the  French  and  American 
Governments  in  regard  to  Russia  and  Poland.  (Ibid, 
p.  470.) 

During  the  past  months,  sympathizers  with  the  Irish 
insurrection  have  been  holding  mass  meetings  and 
parading  about  the  streets  of  Washington,  and  pulling 
down  British  flags  in  the  streets  of  New  York.  Some 
of  the  most  ardent  agitators  picketed  the  British  Em- 
bassy until  the  police  authorities  stepped  in.  The  fed- 
eral authorities  have  not  intervened  except  to  protect 
the  British  Embassy,  nor  does  it  appear  that  the  Brit- 
ish Government  has  entered  any  protest. 

On  St.  Patrick's  Day,  John  F.  Harrigan,  State  Presi- 
dent of  the  Massachusetts  Council  of  the  American 
Association  for  the  Recognition  of  the  Irish  Republic, 
telegraphed  President  Harding,  "In  the  name  of  125,- 
000  citizens"  of  the  State,  to  "demand  action"... 
"now,"  and  that  he  revoke  the  orders  of  the  officers 
at  Boston  who  had  refused  to  allow  men  in  uniform 
to  parade  when  they  were  informed  that  the  above 
mentioned  association  intended  to  participate. 

After  President  Harding  had  conferred  with  his 
Cabinet,  his  Secretary,  Mr.  Christian,  sent  the  follow- 
ing reply:  "Your  telegram  has  been  called  to  the  at- 
tention of  the  President  and  he  directs  me  to  say  in 
reply  that  army  and  navy  commanders  have  authority 


384  NON-INTERFERENCE 

to  direct  the  forces  under  their  command.  The  gov- 
ernment raises  no  issue  about  the  fitness  of  your  cele- 
bration of  evacuation  day  and  the  spirit  of  St.  Patrick's 
day  is  felt  throughout  our  country,  but  the  naval  and 
military  forces  of  the  nation  can  have  no  part  in  any 
demonstration  which  may  be  construed  as  influencing 
the  foreign  relations  of  the  republic."  (Washington 
Post,  March  18,  1921.) 

To  have  adopted  any  other  course  would  have 
amounted  to  an  interference  in  the  internal  affairs  of  a 
friendly  state. 

It  is  not  enough  that  a  state  should  refrain  from  in- 
citing to  revolt.  It  must,  as  we  have  already  seen,  be 
careful  not  to  attempt  to  use  its  agents  or  its  influence 
directly  to  carry  on  a  propaganda  abroad,  even  though 
it  may  believe  this  to  be  for  the  best  interest  of  the 
other  state.97 


9TThis  duty  of  refraining  from  any  violations  of  the  sover- 
eignty of  the  other  state  is  discussed  above,  §  12. 

The  limits  within  which  a  state  should  restrict  its  efforts 
at  propaganda,  political  or  religious,  are  indicated  in  a  letter 
Frederic  Rogers  (Lord  Blachford)  wrote  regarding  the  ap- 
pointment of  missionary  bishops  in  the  Turkish  Empire: 

"My  dear  Lord  Bishop, — I  am  rather  afraid  of  being  mis- 
understood about  your  Bill,  a  copy  of  which  has  just  reached 
me. 

"I,  of  course,  think  it  is  a  just  claim  of  the  English  Church 
to  be  allowed  to  consecrate  Missionary  Bishops,  and  as  a 
Churchman  I  shall  be  extremely  glad  if  your  particular  Bill 
passes  as  it  stands. 

"But  I  think  that  in  your  Bill  the  State  is  entitled  to  take 
this  objection — the  Bill  proposes  to  invest  a  Bishop  in  a 
Mahomedan  country — say  of  Mecca — with  a  statutory  relation 
to  the  Church  of  England,  that  is  to  say,  to  attach  him  re- 
motely, but  really,  to  the  constitution  of  this  country  of  which 
the  Church  is  a  part. 

"Now,  this  Bishop  of  Mecca  is  not  a  mere  Bishop  of  English 
congregations,  but  a  Missionary  Bishop  bound  in  that  capacity 
to  make  war  upon  Mahomedanism,  which  is,  on  the  other 
hand,  part  of  the  political  constitution  of  the  Ottoman  Empire. 


]  PREVENTION  385 

DOCTRINE  OF  CONTAGION 

The  advent  of  a  revolutionary  government  in  a  neigh- 
boring state  or  the  prevalence  within  its  borders  of 
peculiar  beliefs  and  practices  cannot  be  considered  by 

"Now,  the  Ottoman  Empire  having  been  to  a  certain  extent 
admitted  into  the  family  of  nations,  is  it  according  to  the 
comity  of  nations  that  the  English  Parliament  should  take 
under  its  wing  an  organized  attack  on  the  constitution  of 
that  Empire?  The  Pope,  no  doubt,  does  it  in  England,  but 
first  he  does  it  under  shelter  of  certain  principles  of  tolera- 
tion, which  we  profess,  and  which  it  appears  to  me  are 
sufficient  to  cover  his  aggression ;  and  next  we,  notwithstand- 
ing, quarrel  with  him  for  doing  it. 

"You  will  answer  that  the  Crown  may,  under  your  Bill, 
prevent  any  such  complications  by  refusing  its  assent  to  the 
creation  of  any  Bishopric  which  is  calculated  to  cause  them. 

"This  is  one  of  those  answers  which  is  good  or  bad  accord- 
ing to  the  animus  of  the  person  to  whom  it  is  addressed.  A 
rash  or  careless  Minister  may  authorize  the  erection  of  an 
Anglican  Bishopric  in  a  place  where  its  erection  would  be 
politically  unjustifiable.  The  question  is  whether  the  ad- 
vantage (of  setting  the  Church  going  in  a  missionary  direc- 
tion) justifies  the  risk  of  an  ill-advised  appointment  causing 
a  complication  with  a  foreign  country. 

"Personally,  I  think  it  does  (and  therefore  wish  well  to 
your  Bill),  but  if  I  held  the  well-being  of  the  English  Church 
a  matter  of  little  importance  to  this  country  I  should  think 
differently,  and  should  think  that  the  Parliament  had  a  right 
to  some  more  distinct  guarantee  (to  speak  as  a  politician) 
against  the  abuse  of  the  powers  of  consecration. 

"Even  personally  I  prefer  our  colonial  principle  of  pro- 
ceeding, the  principle,  namely,  of  leaving  Bishops  to  conse- 
crate in  virtue  of  their  inherent  spiritual  powers,  and  leaving 
the  consecrating  and  consecrated  to  arrange  for  themselves 
what  shall  be  their  relation  to  each  other.  In  this  case,  the 
State  is  subject  to  no  responsibility  (colonial  Bishops  being 
no  part  of  the  Constitution),  and  is  therefore  entitled  to  no 
control  over  the  missionary  operations  of  the  Church. 

"I  should  therefore  have  liked  best  to  see  a  Bill  (though 
it  would  have  been  perhaps  very  difficult  to  draw  one)  which 
would  merely  have  permitted  the  Church  to  create  an  Episco- 
pate beyond  the  limits  of  the  Queen's  Dominions,  leaving  the 
relations  of  that  Episcopate  to  be  formed  by  mutual  consent 
without  any  statutory  aid  or  the  necessity  of  any  Royal  assent. 
25 


386  NON-INTERFERENCE 

their  mere  example  so  to  endanger  the  security  of  other 
states  as  to  justify  intervention. 

To  quote  from  Professor  Bernard:  "It  may  be  said 
with  confidence,  I  think,  that  interference  in  the  in- 
ternal affairs  (as  we  have  defined  them)  of  a  foreign 
State  never  can  be  a  necessity,  unless  it  be  a  self-made 
necessity.  As  long  as  what  is  passing  in  your  neigh- 
bor's house  does  not  directly  concern  you,  there  cannot 
be  that  pressing  call  for  self-defense,  that  clear,  formid- 
able, imminent  danger,  which  the  plea  assumes.  Peo- 
ple of  sickly  constitution  may  take  fright  at  the  possi- 
bility of  infection,  and  misgoverned  countries  may  be 
agitated  by  every  turbulent  movement  elsewhere ;  but 
in  a  despotically  governed  country  there  is  no  such 
right  to  uphold  a  despotism,  nor  in  a  republican  coun- 
try to  maintain  a  republic,  as  would  warrant  an  inter- 
ference with  the  clear  indisputable  right  of  surround- 
ing nations  to  change  their  institutions  at  pleasure.88 


"But  I  repeat,  in  default  of  this,  I  should  consider  your 
Bill  as  likely  to  be  of  great  advantage,  and  wish  it  success." 
(Letters  of  Frederic  Lord  Blachford,  edited  by  George  Eden 
Marindin,  1896,  p.  234-6.) 

98In  regard  to  propaganda  of  objectionable  doctrines, 
Heiberg,  who  may  be  called  the  dean  of  authorities  upon  the 
subject  of  intervention,  remarks:  "A  state  which  can  be 
ruined  in  this  wise,  must  either  be  tottering,  and  out  of  touch 
with  higher  civilization  [Kultur],  or  the  ideas  and  danger- 
laden  system  which  has  gained  recognition  in  the  state  from 
which  the  danger  threatens  must  have  truth  in  them. "  (Trans- 
lated from  Nicht-Intervention,  1842,  p.  15-16.)  Heiberg 
refers  to  the  views  of  the  elder  Rotteck  against  interference 
on  account  of  revolutionary  troubles,  which  called  forth  a 
counter  opinion  from  one  Dr.  Trummer,  who  considered  that 
states  are  so  nearly  affected  by  what  happens  across  their 
borders  that  intervention  cannot  always  be  avoided. 

Ott's  French  edition  of  Kluber  (§  237,  p.  308)  contains  an 
interesting  note  (e)  condemning  interference  because  of  the 
fear,  real  or  alleged,  of  "a  moral  invasion,  an  intellectual 
contagion,  a  political  epidemic."  References  to  other  au- 
thorities are  also  given, 


PREVENTION  387 

(Bernard:  Non-intervention,  1860,  p.  12-13,  quoting 
Canning,  Debates,  House  of  Lords,  Feb.  19,  1821.) 

The  wars  of  the  French  Revolution  were  ushered  in 
with  an  appeal  to  the  doctrine  of  contagion.  In  the 
manifesto  issued  August  4,  1792,  by  the  Emperor  of 
Germany  and  the  King  of  Prussia  they  declare  their  in- 
tention of  destroying  in  France  "every  spark  of  insur- 
rection, which  might  continually  threaten  and  endanger 
the  welfare  of  all  sovereigns,  and  all  nations."  (An- 
nual Register,  1792,  p.  236,  252.)  This  recalls  the 
witty  retort  of  a  Frenchwoman  in  sympathy  with  the 
Revolution :  "What  you  believe  to  be  a  conflagration  is 
only  an  illumination."  (Krug:  Dikapolitik,  1824,  p. 
332.) 

The  Holy  Alliance  of  the  autocratic  powers  under 
the  leadership  of  Metternich  attempted  to  enforce  the 
doctrine  and  to  suppress  revolutionary  movements  in 
the  European  states  upon  the  ground  of  preventing  the 
danger  to  their  own  security  from  the  spread  of  revolu- 
tion. The  Preliminary  Protocol  of  Troppau  contained 
the  following  declaration:  "States  which  have  under- 
gone a  change  of  government  due  to  revolution,  the  re- 
sults of  which  threaten  other  states,  ipso  facto  cease 
to  be  members  of  the  European  Alliance,  and  remain 
excluded  from  it  until  their  situation  gives  guarantees 
for  legal  order  and  stability.  If,  owing  to  such  alter- 
ations, immediate  danger  threatens  other  states,  the 
powers  bind  themselves,  by  peaceful  means,  or  if  need 
be  by  arms,  to  bring  back  the  guilty  state  into  the  bosom 
of  the  Great  Alliance."99  (W.  A.  Phillips:  The  Con- 
federation of  Europe,  p.  222.) 


"After  Westlake  has  justified  "the  decision  of  the  great 
powers  in  1815  to  exclude  Napoleon  from  the  throne  of  France, 
as  a  man  the  experience  of  whose  conduct  precluded  belief 
in  any  protestations  of  peacefulness  which  he  might  make," 
he  remarks:  "With  this  must  be  strongly  contrasted  the  at- 


388  NON-INTERFERENCE 

W.  A.  Phillips,  in  his  "Confederation  of  Europe," 
relates  how  seriously  Alexander  I  of  Russia  was  in- 

tempt  which  during  a  few  years  after  the  congress  of  Vienna 
was  made  by  the  continental  great  powers  to  rule  Europe  on 
the  principle  of  legitimacy.  In  the  circular  dispatch  which, 
on  the  occasion  of  the  insurrection  at  Naples,  the  courts  of 
Austria,  Russia  and  Prussia  dated  from  Troppau,  8  Decem- 
ber 1820,  they  said  that  'the  powers  have  exercised  an  incon- 
testable right  in  occupying  themselves  with  taking  in  common 
measures  of  security  against  states  in  which  the  overthrow 
of  the  government  by  a  revolt,  even  could  it  be  considered 
only  as  a  dangerous  example,  must  have  for  its  consequence 
a  hostile  attitude  against  all  constitutions  and  legitimate 
governments. '  This  was  to  assert  a  right  of  self-preservation 
against  the  contagion  of  revolution ;  to  deny  to  a  nation  the 
right  of  establishing  for  itself  free  institutions,  by  force  if 
they  cannot  otherwise  be  attained,  lest  the  example  should  be 
dangerous  to  autocratic  governments  in  other  countries.  The 
true  principle  was  expressed  by  Canning,  when  on  31  March 
1823,  on  the  occasion  of  the  French  intervention  against  the 
government  which  had  been  established  by  insurrection  in 
Spain,  he  wrote  to  the  British  ambassador  at  Paris:  'No 
proof  was  produced  to  his  majesty's  plenipotentiary  of  the 
existence  of  any  design  on  the  part  of  the  Spanish  govern- 
ment to  invade  the  territory  of  France,  of  any  attempt  to 
introduce  disaffection  among  her  soldiery,  or  of  any  project 
to  undermine  her  political  institutions;  and  so  long  as  the 
troubles  and  disturbances  of  Spain  should  be  confined  within 
the  circle  of  her  own  territory,  they  could  not  be  admitted 
by  the  British  Government  to  afford  any  plea  for  foreign 
interference.  If  the  end  of  the  last  and  the  beginning  of  the 
present  century  saw  all  Europe  combined  against  France,  it 
was  not  on  account  of  the  internal  changes  which  France 
thought  necessary  for  her  own  political  and  civil  reformation, 
but  because  she  attempted  to  propagate  first  her  principles, 
and  afterwards  her  dominion,  by  the  sword.'  '  (Westlake: 
International  Law,  Part  I,  Peace,  p.  318-319.) 

Westlake  adds  the  following  in  a  footnote :  ' '  We  quote  the 
last  sentence  only  for  the  principle,  without  implying  anything 
as  to  the  historical  accuracy  of  the  judgment  passed  by  Can- 
ning on  the  wars  of  the  French  revolution,  further  than  that 
it  was  certainly  a  true  judgment  so  far  as  concerns  the  part 
taken  in  those  wars  by  Great  Britain.  (Ibid.)  Bernard  as 
we  have  indicated  above  quotes  from  this  same  speech  with 
approval.  (Bernard:  Non-intervention,  p.  12-13.) 


PREVENTION  389 

fluenced  by  the  news  of  the  revolt  of  his  favorite  regi- 
ment in  October,  1820.    This  incident  may  serve  to  il- 
lustrate the  excesses  into  which  unfounded  apprehen- 
sions may  lead  autocratic  power  in  the  defense  of  a 
cherished  doctrine :  *  *  This  regiment, ' '  writes  Mr.  Phil- 
lips, "of  which  as  Cesarevich  he  had  been  Colonel-in- 
chief ,  had  supplied  the  guard  at  the  Michael  Palace  on 
the  night  of  Paul's  murder  and  had  since  been  treated 
by  Alexander  with  special  favor.    A  military  power 
such  as  Russia,  as  the  Emperor  explained  to  Welling- 
ton, could  not  afford  to  tolerate  military  revolutions  in 
other  countries,  the  example  of  which  might  prove  in- 
fectious;  and  now  his  worst  fears  were  realized.    In 
vain  it  was  pointed  out  to  him,  by  all  those  best  able  to 
judge,  that  no  political  motives  underlay  the  action  of 
the  soldiers,  who  had  been  goaded  to  revolt  solely  by 
the  intolerable  tyranny  of  their  colonel,  a  stupid  and 
cruel  Prussian  martinet.    Alexander  insisted  that  the 
mutiny  was  the  outcome  of  the  conspiracy  of  the  Car- 
bonari, who  had  spread  their  network  over  all  Europe 
and  covered  even  the  soil  of  Holy  Russia.    Crowning 
proof  of  his  own  folly !    In  the  person  of  Napoleon  he 
had  thought  to  overthrow  the  Beast;   and  behold!   it 
was  not  incarnate  in  one  man,  but  a  'many-headed 
monster  thing'  of  which,  in  his  blindness,  he  had  him- 
self encouraged  the  growth.    At  least  his  eyes  were 
opened,  by  the  Providence  of  God,  before  it  was  too 
late,  and  his  duty  was  clear.    To  the  servants  of  the 
Evil  One  no  mercy  must  be  shown ;  he  set  aside  as  too 
lenient  the  sentences  passed  by  the  court-martial  on 
the  ringleaders  of  the  mutiny — two  corporals  and  five 
poor  privates — and  ordered  that  they  should  receive 
six  thousand  strokes  apiece.    Thus  in  Holy  Russia  at 
least  the  Lord's  will  could  be  done.    As  for  Europe  at 
large,  to  Alexander  God's  will  was  now  equally  clear. 
He  searched  the  Scriptures,  and  found  in  the  most  un- 


390  NON-INTERFERENCE 

likely  places — in  the  stories  of  Nebuchadnezzar  and  of 
Judith  and  Holofernes,  and  in  the  Epistles  of  St.  Paul 
—Divine  lessons  applicable  to  the  perils  of  the  hour. 
To  the  principle  of  Evil,  bastard  brood  of  Voltairean 
philosophy  falsely  so  called,  must  be  opposed  the  prin- 
ciple of  Faith,  which  found  its  supreme  expression  in 
that  revelation  of  the  Most  High — the  Holy  Alliance. 
Stripped  of  its  verbiage,  this  meant  that  in  Alexander's 
view  the  Alliance  was  henceforth  to  be  used  as  a  force 
purely  conservative,  if  not  reactionary."  (W.  A.  Phil- 
lips: The  Confederation  of  Europe,  p.  219-221.) 

Whatever  authority  the  doctrine  of  contagion  may 
have  once  derived  from  the  great  force  of  the  combined 
power  of  the  Holy  Alliance  interested  in  enforcing  it 
has  now  entirely  disappeared.  In  place  of  this  attempt 
to  legalize  interference,  international  law  recognizes 
that  no  state  has  a  right  of  intervention  merely  on  the 
ground  that  the  doctrines  preached  in  another  country 
or  the  pernicious  example  of  its  institutions  endanger 
the  state's  security. 

Notwithstanding  the  complete  recognition  of  the  il- 
legality of  interference  of  the  kind  we  have  been  dis- 
cussing, governments  responding  to  the  currents  of 
public  opinion  are  certain  to  transgress  the  rule  in  the 
future  as  they  have  done  in  the  past.  The  difficulty  in 
preventing  this  lies  in  finding  any  adequate  check  upon 
the  waves  of  popular  emotion  which  the  government  of 
even  the  most  enlightened  of  the  modern  states  are 
powerless  to  resist.1 


Nassau  Senior,  discussing  interference  of  this  kind,  points 
out  the  flimsy  basis  upon  which  it  is  justified,  declaring  that 
the  circumstances  which  create  the  "supposed  inconvenience 
or  danger  arising  to  other  nations  from  events  occurring  in 
the  interior  of  a  country"  are  "incapable  of  definition,  and 
generally  incapable  of  proof.  If,"  he  continues,  "we  ex- 
amine the  statements  of  evils  suffered  or  apprehended  from 
the  domestic  affairs  of  independent  nations,  on  which  the 


PREVENTION  391 

John  Stuart  Mill  touches  upon  the  real  cause  of  the 
vitality  of  this  false  doctrine  of  contagion  when  in  a 
letter  discussing  the  settlement  of  international  differ- 
ences, he  writes:  "When  the  nations  of  Europe  shall 
have  given  up  national  hatreds  and  schemes  of  national 
aggrandizement,  and  when  their  institutions  shall  be 
sufficiently  assimilated  to  prevent  any  of  the  govern- 
ments from  seeing  in  the  greatness  and  prosperity  of 
another  state  a  danger  to  its  power  over  its  own  people, 
they  will  probably  be  all  so  sincerely  desirous  of  peace 
that  they  will  never  dream  of  any  other  than  an  ami- 
cable settlement  of  any  accidental  differences  that  may 
still  arise.  And  every  step  taken  in  the  improvement 
of  the  intelligence  and  morality  of  mankind  brings  this 
happy  result  a  little  nearer."  (The  Letters  of  John 
Stuart  Mill,  edited  by  Hugh  S.  E.  Elliot,  London,  1910, 
vol.  II,  p.  296.)  But  that  day  seems  as  far  removed  as 
is  the  abandonment  of  interference  to  check  abhorrent 
doctrines  and  to  suppress  hated  institutions. 

In  conclusion,  we  will  reaffirm  the  correct  view  by 
quoting  the  concise  statement  of  Hall:  "When  how- 
ever the  danger  against  which  intervention  is  levelled 
does  not  arise  from  the  acts  or  omissions  of  the  state, 

most  remarkable  modern  interventions  have  been  founded, 
we  shall  find  them  in  general  too  vague  to  be  susceptible  of 
refutation,  or  too  frivolous  to  deserve  it ..." 

"A  remarkable  similarity  runs  through  all  the  state  papers 
in  which  this  right  of  intervention  is  asserted.  They  gen- 
erally begin  by  disclaiming  the  wish  to  interfere  with  the 
affairs  of  any  independent  state;  they  then  state  the  incon- 
veniences suffered  by  their  own  frontiers,  in  consequence  of 
the  disturbed  state  of  their  neighbors;  they  add  that  the 
doctrines  professed,  and  the  examples  held  out,  are  subversive 
of  the  general  tranquility  of  Europe,  and  particularly  of  that 
of  their  own  dominions:  and  they  therefore  propose  to  take 
military  possession  of  the  disturbed  country,  with  no  views 
of  aggrandizement,  but  simply  in  self-defense."  (Nassau 
Senior :  The  Law  of  Nations,  Edinburgh  Review,  April,  1843, 
p.  334-6.) 


392  NON-INTERFERENCE 

but  is  merely  the  indirect  consequence  of  the  ex- 
istence of  a  form  of  government,  or  of  the  prevalence 
of  ideas  which  are  opposed  to  the  views  held  by  the 
intervening  state  or  its  rulers,  intervention  ceases  to 
be  legitimate.  To  say  that  a  state  has  a  right  to  ask  a 
neighbor  to  modify  its  mode  of  life,  apart  from  any  at- 
tempt made  by  it  to  propagate  the  ideas  which  it  rep- 
resents, is  to  say  that  one  form  of  state  life  has  a  right 
to  be  protected  at  the  cost  of  the  existence  of  another ; 
in  other  words,  it  is  to  ignore  the  fundamental  principle 
that  the  right  of  every  state  to  live  its  life  in  a  given 
way  is  precisely  equal  to  that  of  another  state  to  live  its 
life  in  another  way."  (Hall:  International  Law,  4 
ed.,  §  91,  p.  299-300.) 

§  16.    SELF-PRESERVATION 

There  are  some  writers  who  assert  that  when  a  state 
believes  that  the  preservation  of  its  existence  can  be 
effected  by  the  disregard  of  the  rights  of  innocent 
states,  it  is  justified  in  seeking  safety  at  the  expense  of 
others.2  But  this  doctrine  of  necessity  strikes  at  the 

2We  should  remember  that  the  preservation  of  a  govern- 
ment is  by  no  means  the  same  thing  as  the  preservation  of  a 
nation  or  state.  Even  when  the  state  itself  is  destroyed,  the 
people  may  find  happiness  under  another  flag.  These  con- 
siderations should  help  to  secure  a  better  recognition  of  the 
obligation  to  sacrifice  the  existence  of  the  state  rather  than 
to  disregard  the  sacred  terms  of  a  treaty.  Again  I  quote 
the  noble  words  of  Westlake :  "  . . . .  patriotism  should  not 
allow  us  to  forget  that  even  our  own  good,  and  still  less  that 
of  the  world,  does  not  always  and  imperatively  require  the 
maintenance  of  our  state,  still  less  its  maintenance  in  its 
actual  limits  and  with  undiminished  resources."  (Westlake: 
International  Law,  vol.  I,  p.  312.) 

When  we  speak  of  the  existence  of  the  state,  we  are  always 
making  a  mere  supposition,  for  no  one  really  knows  what  will 
endanger  the  existence  of  the  state.  We  should  always  read 
"interests  of  prime  importance"  when  the  preservation  of 
the  state  is  discussed. 


SELF-PRESERVATION  393 

very  root  of  international  society,  and  makes  the  pres- 
ervation of  the  separate  states  of  greater  importance 
than  the  preservation  of  the  community  of  states. 
Needless  to  say,  it  is  not  supported  by  the  weight  of 
authority,  nor  by  the  practice  of  states. 

For  the  purpose  of  refuting  this  doctrine,  Westlake 
(vol.  I,  p.  309)  quotes  the  following  extract  from  Eivier 
(Principes  du  droit  des  gens,  vol.  I,  p.  277) :  "When," 
Rivier  says,  "a  conflict  arises  between  the  right  of  self- 
preservation  of  a  state  and  the  duty  of  that  state  to 
respect  the  right  of  another,  the  right  of  self-preser- 
vation overrides  the  duty.  Primum  vivere.  A  man 
may  be  free  to  sacrifice  himself.  It  is  never  permitted 
to  a  government  to  sacrifice  the  state  of  which  the  des- 
tinies are  confided  to  it.  The  government  is  then  au- 
thorized, and  even  in  certain  circumstances  bound, 
to  violate  the  right  of  another  country  for  the  safety 
(salut)  of  its  own.  That  is  the  excuse  of  necessity,  an 
application  of  the  reason  of  state.  It  is  a  legitimate 
excuse. '  '3 


3Machiavelli  endorsed  this  doctrine  of  necessity  as  a  com- 
plete justification  in  "The  Prince"  (1676,  eh.  xviii)  where  he 
wrote :  "A  prince,  therefore,  who  is  wise  and  prudent,  cannot 
or  ought  not  to  keep  his  parole  when  the  keeping  of  it  is  to  his 
prejudice,  and  the  causes  for  which  he  promised  removed. 
Were  men  all  good  this  doctrine  was  not  to  be  taught,  but 
because  they  are  wicked  and  not  likely  to  be  punctual  with 
you,  you  are  not  obliged  to  any  such  strictness  with  them; 
nor  was  there  ever  any  prince  that  wanted  lawful  pretence  to 
justify  his  breach  of  promise. "  (Quoted  from  T.  J.  Lawrence : 
Documents  Illustrative  of  International  Law,  p.  3-4.) 

On  the  whole,  Vattel  cannot  be  said  to  support  the  doctrine 
of  necessity  in  its  absolute  form.  (Cf.  Bk.  Ill,  §  43;  Bk.  II, 

Kliiber  (Europaischer  Volkerrecht,  §  44)  gives  an  emphatic 
endorsement  of  the  doctrine,  and  gives  several  references  in 
notes. 

G.  F.  de  Martens  (Precis,  §§  74,  78)  permits  interference 
when  necessary  for  the  security  of  the  state. 


394  NON-INTERFERENCE 

"We  will  here  pause  to  remark,"  writes  Westlake, 
"that  an  argument  which  may  be  good  as  between  a 


Professor  Franz  von  Liszt,  of  the  University  of  Berlin,  in 
the  year  of  our  Lord  1920,  still  supports  the  doctrine  of 
necessity  (Volkerrecht,  11  ed.,  Berlin,  1920,  p.  180-1). 

At  first  view,  we  appear  to  find  a  considerable  weight  of 
modern  authority  defending  the  doctrine  of  absolute  neces- 
sity, that  is,  the  right  of  a  state  to  do  anything  which  it  finds 
necessary  for  the  preservation  of  its  existence,  even  though 
it  disregard  the  most  sacred  rights  of  its  innocent  neighbors. 
But  on  closer  inspection,  we  find  that  very  few  really  intend 
to  support  this  stand.  What  many  of  these  authorities  have 
in  view  is  the  right  of  a  state  to  disregard  the  inviolability  of 
a  sovereign  state's  territory  when  the  latter  fails  to  police  it 
and  prevent  its  serving  as  a  base  for  hostile  expeditions.  The 
invasion  of  the  territory  in  such  circumstances  is  not  a  viola- 
tion of  sovereignty,  but  a  cooperation  with  the  sovereign  for 
the  policing  of  his  territory.  It  is  unlawful  for  him  to  resist 
reasonable  action  of  this  nature,  and  he  will  do  so  at  his  costs 
and  peril.  (See  above  §§1  and  15.) 

This  seems  to  be  the  idea  at  the  bottom  of  Hall's  somewhat 
confused  statements.  (Cf.  International  Law,  4  ed.,  §§  11, 
83,  85,  91.)  On  the  whole,  his  authority  is  opposed  to  this 
absolute  doctrine  of  necessity. 

Phillimore  stumbles  in  the  same  manner.  (See  vol.  I,  § 
213,  p.  227.) 

Lawrence,  defending  action  under  necessity,  is  evidently 
intending  to  justify  both  preventive  action  by  self-help,  and 
acts  of  military  necessity  (Principles,  4  ed.,  1910,  §  65,  p. 
127.) 

Oppenheim  (International  Law,  2  ed.,  vol.  I,  §§  129-130, 
p.  184-6;  §  138,  p.  195;  vol.  II,  §  413,  p.  532),  betrays  in 
the  confusion  of  his  words  the  insecurity  of  his  premises. 

See  also  Twiss  (vol.  I,  p.  149-150) ;  Guizot  (Memoirs,  vol. 
IV,  p.  5) ;  Kent  (Commentaries,  12  ed.,  vol.  I,  p.  23.) 

As  we  have  indicated,  the  value  of  the  evidence  which  many 
of  these  text  writers  bring  to  the  support  of  the  doctrine  of 
necessity  is  weakened  and  neutralized  by  the  conflicting  views 
which  they  express. 

Those  authorities  who  would  allow  every  independent  state 
to  be  the  sole  judge  of  when  the  preservation  of  its  existence 
against  impending  danger  justifies  an  invasion  of  a  neighbor- 
ing state  may  present  some  theoretical  difference  between  the 
advocates  of  the  extreme  doctrine  of  necessity,  but  in  practice, 
either  doctrine  would  make  possible  the  same  disregard  of 


SELF-PRESERVATION  395 

state  and  a  government  entrusted  by  it  with  its  des- 
tinies is  not  necessarily  good  between  it  and  that  gov- 
ernment together  and  another  state;  or  we  may  put 
it  that  no  state  can  entrust  its  government  with  wider 
powers  than  itself  possesses."4  (Westlake:  Inter- 
national Law,  vol.  I,  p.  310.) 

the  rights  of  innocent  weaker  states,  and  may  therefore  be 
considered  as  two  forms  of  international  anarchy.  See  dis- 
cussion in  section  15  regarding  Castlereagh 's  note  on  the  af- 
fairs of  Spain;  cf.  also  his  Circular  of  January  19,  1821 
(British  State  Papers,  Vol.  8,  p.  1160),  in  which  this  doctrine 
was  expressed  (quoted  in  Creasy,  p.  293).  Calvo  calls  these 
"wise  principles"  (Le  Droit  International,  1  ed.,  vol.  I,  §  97, 
p.  201.) 

Evidently  influenced  by  Castlereagh,  Wheaton  (Elements 
of  International  Law,  Part  II,  eh.  I,  §  12,  p.  106),  referring 
to  the  sovereign's  right  to  establish  whatever  form  of  govern- 
ment it  chooses,  declares:  "No  foreign  state  can  lawfully 
interfere  with  the  exercise  of  this  right,  unless  such  inter- 
ference is  authorized  by  some  special  compact,  or  by  such  a 
clear  case  of  necessity  as  immediately  affects  its  own  inde- 
pendence, freedom,  and  security. ' ' 

^Opposed  to  the  doctrine  of  absolute  necessity,  that  is,  the 
right  of  a  state  to  do  anything  and  to  disregard  any  right  or 
rights  when  it  believes  it  necessary  for  the  preservation  of 
its  existence,  are  the  following  authorities: 

Grotius  points  out  that  reason  justifies  the  principle  of 
self-preservation,  but  he  considers  we  must  "proceed  to  that 
which,  though  subsequent  in  origin,  is  of  greater  dignity ;  and 
must  not  only  accept  it,  if  it  be  offered,  but  seek  it  with  all 
care."  ( Grotius :  De  Jure  Belli  et  Pacis,  Bk.  I,  ch.  II,  I, 
§  2,  Whewell's  translation,  p.  30;  cf.  Ibid,  Bk.  II  ch.  I,  IV, 
§  1.)  In  other  places  where  Grotius  appears  to  justify  vio- 
lation of  law  upon  the  ground  of  necessity,  he  seems  really 
to  mean  the  right  to  disregard  less  important  rights  (Bk.  II, 
ch.  II,  VI,  §  2;  Bk.  II,  ch.  VI,  V;  Bk.  II,  ch.  II,  IX). 

Creasy  (First  Platform,  p.  282,  note)  quotes  approvingly 
Acton's  translation  of  Mamiani's  "Rights  of  Nations"  (p. 
192)  :  "Though  it  be  infallibly  true  and  certain  that  it  is  the 
duty  of  every  human  society  to  save  itself,  and  though  we  be 
allowed  also  to  affirm  that  there  exists  between  them  a  tacit 
agreement  to  help  and  protect  each  other  for  the  sake  of  their 
common  safety,  this  must  always  be  understood  with  some  dis- 


396  NON-INTERFERENCE 

President  Wilson,  in  his  War  Message  of  April  2, 
1917,  expressed  the  opinion  of  what  the  "  heart  and 
conscience  of  mankind  demanded"  when  he  said  rela- 
tive to  Germany's  disregard  of  the  "meager"  re- 
strictions of  international  law  in  her  ruthless  subma- 
rine warfare:  "This  minimum  of  right  the  German 
Government  has  swept  aside  under  the  plea  of  retali- 
ation and  necessity  and  because  it  had  no  weapons 
which  it  could  use  at  sea  except  these  [submarines] 
which  it  is  impossible  to  employ,  as  it  is  employing 
them,  without  throwing  to  the  wind  all  scruples  of  hu- 
manity or  of  respect  for  the  understandings  that  were 
supposed  to  underlie  the  intercourse  of  the  world." 

Germany 's  doctrine  of  necessity  is  contrary  to  inter- 
national law,  not  because  of  the  undoubted  popular  con- 
demnation of  her  course  throughout  the  world,  but  be- 
cause the  states  of  the  world,  in  response  to  sentiments 
of  the  same  nature,  have  in  their  practice  refused  to 
recognize  this  doctrine,  and  have  restricted  their  con- 
duct within  the  limits  traced  by  international  law. 

From  the  point  of  view  of  international  law  as  shown 
by  the  practice  of  states,  the  law  of  nations  is  supreme. 
No  state  can  live  by  itself  nor  enter  the  community  of 


cretion,  and  never  extended  beyond  the  limits  of  rectitude 
and  justice.  No  sanctity,  no  grandeur  of  purpose,  not  even 
any  necessity  or  extreme  pressure  of  an  emergency,  can 
suffice  to  justify  the  resort  to  means  which  are  not  good. 
Let  our  diplomatists,  both  of  the  old  school  and  the  new, 
take  care  to  remember  this,  that  the  observance  of  a  principle 
is  beyond  measure  more  important  than  the  peace,  order,  and 
safety  of  a  single  or  of  several  States." 

See  also,  E.  C.  Stowell:  Diplomacy  of  the  War  of  1914, 
p.  445-456,  640-650.  Ott's  Edition  of  Kliiber  (§  44,  p.  307) 
has  an  important  note  controverting  Kliiber 's  opinion  in 
support  of  the  doctrine  of  necessity. 


SELF-PRESERVATION  397 

states  without  recognizing  the  supreme  obligation  of 
fulfilling  the  law  of  nations.5 

The  strength  and  vigor  of  international  society  is, 
however,  derived  from  the  strength  of  the  separate 
states,  and  international  law  would  be  untrue  to  the 
purposes  of  its  creation  if  it  did  not  express  for  the 
guidance  of  states  in  their  practice  such  rules  as  best 
conserve  the  strength  of  the  separate  states  without 

5Hauterive,  in  his  note  to  Vattel  (Edition  by  Hauterive, 
Vol.  I,  p.  432-3,  Bk.  II,  §  120)  says  that  "necessity"  is  of  the 
same  nature  as  inadvertence  and  insanity  in  that  they  remove 
man's  volition.  In  such  cases,  it  is  evident  that  much,  if  not 
all,  of  the  deterring  effect  of  punishment  will  be  removed  and 
hence  there  will  be  no  rational  ground  for  retributive  punish- 
ment. Nevertheless,  the  law  will  have  been  disregarded,  and 
this  will  justify  action  to  restore  the  rights  of  the  wronged 
state. 

Westlake  has  shown  the  fallacy  of  this  assertion :  ' '  When, ' ' 
he  says,  ' '  a  small  injury  is  inflicted  in  obedience  to  an  almost 
irresistible  impulse,  the  law  may  overlook  it,  but  in  principle 
we  may  not  hurt  another  or  infringe  his  rights,  even  for  our 
self-preservation,  when  he  has  not  failed  in  any  duty  towards 
us." 

"Self -preservation,  when  carried  beyond  this  point,  is  a 
natural  impulse,  an  effect  of  the  laws  to  which  human  nature 
is  subject  in  the  stage  of  advancement  to  which  it  has  as  yet 
attained.  But  the  office  of  jural  law  is  not  to  register  and 
consecrate  the  effects  of  the  laws  of  nature  [i.  e.  of  human 
nature],  but  to  control  them  by  the  introduction  of  the  prin- 
ciple of  justice,  where  an  unreflecting  submission  to  the 
tendencies  which  in  their  untamed  state  they  promote  would 
be  destructive  of  society.  In  that  way  human  nature  itself 
has  been  gradually  improved,  and  we  may  hope  will  continue 
to  be  so."  (Westlake:  International  Law,  Vol.  I,  p.  311 ;  Cf. 
ibid,  p.  307-317.) 

Relative  to  necessity  as  an  excuse,  it  may  be  of  interest  to 
refer  to  the  somewhat  confused  reasoning  of  certain  writers : 
H.  V.  Rotteck  (Einmischungsrecht,  p.  20-25) ;  Oppenheim 
(vol.  II,  p.  53);  Lawrence  (Principles,  4  ed.,  1910,  §  65). 
Rotteck  says  action  on  account  of  necessity  does  not  become 
lawful,  but  is  excused. 


398  NON-INTEEFBRENCE 

destroying  the  supremacy  and  practicability  of  inter- 
national law.a 

When  from  the  practice  of  states  we  seek  to  discover 
how  this  happy  result  has  been  achieved,  we  turn  first 
for  assistance  to  the  observation  of  the  most  trust- 
worthy authorities.  But  since  this  doctrine  of  neces- 
sity is  a  matter  which  has  led  many  of  the  writers 
astray,  we  cannot  rely  upon  their  conflicting  statements 
and  must  needs  base  our  conclusions  at  first  hand  upon 
the  evident  facts  and  the  practice  of  states,  and  test 
them  by  showing  that  they  are  in  conformity  with  the 
fundamental  principles  of  international  law. 

We  have  previously  established  (see  above  §  9)  that 
the  rights  of  each  state,  as  they  are  ordinarily  under- 
stood and  exercised,  may  be  curtailed  or  even  entirely 
denied  when  necessary  for  the  common  peace  and  se- 
curity of  the  society  of  nations. 

Now  when  we  see  that  the  strength  and  prosperity 
of  all  the  states  is  dependent  upon  the  preservation  of 
the  prosperity  of  the  separate  members,  the  same 
principle  of  international  police  would  appear  to  justify 
a  reasonable  curtailment  of  the  rights  of  any  state  in 
order  to  preserve  the  existence  of  one  of  the  other 
member  states. 

In  principle  and  reasoning  a  priori,  this  rule  is  sound, 
and  in  practice  we  find  that  it  is  acted  upon.7 

Every  state  that  is  mindful  of  the  obligations  of 
mutual  helpfulness  and  cooperation  would  not  refuse  to 
permit  a  reasonable  disregard  of  its  minor  rights  when 
necessary  for  the  preservation  of  the  existence  of  a  sis- 

6The  rules  of  international  law  are  in  the  main  derived 
from,  or  indicated  by,  the  concurrent  practice  of  states,  and 
like  all  inductive  generalizations,  can  be  only  approximately 
accurate.  But  when  once  a  rule  has  been  formulated,  it 
receives  for  that  reason  a  greater  respect,  and  tends  to  make 
the  practice  of  states  conform  to  the  terms  in  which  it  has 
been  stated. 

7See  above  §  9. 


SELF-PRESERVATION  399 

ter  state.8  Conduct  other  than  this  would  constitute  an 
abuse  of  right,  since  it  would  be  an  unreasonable  insis- 
tence upon  the  right  in  question  to  the  detriment  of 
that  for  the  preservation  of  which  the  right  was  pri- 
marily intended. 

Stated  from  the  point  of  view  of  the  intervening 
state,  international  law,  in  denying  the  right  of  a  state 
to  destroy  another  even  when  necessary  for  its  own 
preservation,  does  not  deny  that  every  state  may,  when 
necessary  for  the  preservation  of  its  existence,  disre- 
gard less  important  rights  of  other  states.  This  is  the 
true  doctrine  of  necessity. 

Elvery  state  is  required  by  international  law  to  re- 
frain from  every  abusive  use  of  its  sovereignty  and  in- 
dependence in  order  that  the  rights  of  every  other  state 
to  the  maintenance  of  its  independent  existence  may 
not  be  imperiled.  The  purpose  of  the  observance  of 
this  rule  is  to  preserve  unimpaired  the  strength  of  in- 
ternational society,  which  is  itself  derived  from  the 
strength  of  the  separate  states  and  their  continued  in- 
dependent existence.9 

8See  also  below  §  22.  Disraeli  well  understood  this  as  is 
shown  by  the  following  remark  which  he  made:  ''If  the 
government  of  the  world  was  a  mere  alternation  between  ab- 
stract right  and  overwhelming  force,  I  agree  there  is  a  good 
deal  in  that  observation;  but  that  is  not  the  way  in  which 
the  world  is  governed.  The  world  is  governed  by  conciliation, 
compromise,  influence,  varied  interests,  the  recognition  of  the 
rights  of  others,  coupled  with  the  assertion  of  one 's  own ;  and 
in  addition,  a  general  conviction,  resulting  from  explanation 
and  good  understanding,  that  it  is  for  the  interest  of  all  parties 
that  matters  should  be  conducted  in  a  satisfactory  and  peace- 
ful manner."  (G.  E.  Buckle:  Life  of  Disraeli,  Vol.  V,  p. 
460461.) 

9Some  writers  condemn  the  attempt  to  establish  a  hierarchy 
of  rights,  but  this  is  to  misunderstand  the  real  significance 
of  this  doctrine  of  necessity.  There  would  be  no  hierarchy 
of  rights  if  such  right  were  accurately  and  completely  formu- 


400  NON-INTERFEEENCE 

From  this  examination,  we  perceive  that  a  state  is 
justified  when  necessary  for  the  preservation  of  its 
existence  and  the  rights  essential  thereto,  in  disregard- 
ing rights  of  another  state  which  are  not  essential  to 
the  existence  of  the  latter.  Expressed  from  the  point 
of  view  of  the  obligation  of  the  state  whose  rights  are 
disregarded,  this  is  the  rule  of  mutual  self-sacrifice 
reasonably  incumbent  upon  all  the  nations  in  the  inter- 
est of  their  common  welfare,  or,  more  briefly,  this  may 
be  called  the  principle  of  the  relativity  of  rights  and 
it  is  a  rule  the  observance  of  which  is  essential  to  pre- 
vent intolerable  abuses  of  right. 

The  same  idea  is  expressed  in  the  maxim :  summum 
jus  summa  injuria,  which  may  be  freely  translated: 
the  insistence  upon  the  literal  and  absolute  fulfilment 
of  one's  legal  right  works  supreme  injustice.  Grotius 
advises  that  concessions  be  made  in  order  to  avoid  war, 
and  quotes  Ambrose  as  saying :  * ' . . .  for  a  good  man  to 
relax  somewhat  of  his  rights,  is  not  only  a  point  of 
liberality,  but  often  of  convenience."  (Grotius,  Bk. 
II,  ch.  XXIV,  II,  §§  3-4,  Whewells's  translation,  vol.  II, 
p.  415-6.)  Elsewhere  Grotius  makes  application  of 
the  same  idea  when  he  recognizes  the  right  of  taking 
property  in  case  of  necessity,  but  adds :  "...  such  lib- 
erty is  not  granted,  if  the  possessor  be  in  like  neces- 
sity." (Grotius,  Bk.  II,  ch.  II,  VIII,  Whewells's  trans- 
lation, vol.  I,  p.  240.) 

Ferdinando  Galiani  has  recognized  this  rule,  and 
stated  Has"  the  combination  of  the  greatest  benefit  to 

lated,  but  since,  in  view  of  our  lack  of  juridical  experience 
and  science,  this  is  not  yet  possible,  every  right  as  formulated 
must  be  understood  to  be  subject  to  certain  fundamental  or 
guiding  principles,  as  Westlake  has  said  in  a  passage  already 
quoted :  "...  No  principle  is  more  firmly  established  in  the 
science  of  law  than  that  which  says  to  an  owner  sic  utere  tuo 
ut  alienum  non  laedas."  [So  use  thine  own  as  not  to  injure 
another.]  (Westlake:  International  Law,  vol.  II,  p.  313.) 


SELF-PRESERVATION  401 

oneself  with  the  least  damage  to  others  and  recipro- 
cally the  least  damage  to  oneself,  combined  with  the 
greatest  benefit  of  others."  (De  Doveri,  Naples,  1782, 
p.  20-22,  translated  from  the  French,  quoted  in  a  note 
to  Pradier-Fodere's  Vattel,  Paris,  1863,  vol.  II,  p.  104, 
Bk.II,ch.V,§119.)10 

Westlake  (vol.  I,  p.  312-313)  alludes  to  this  same 
principle  negatively  when  he  justifies  anticipatory 
action  to  prevent  "all  violation  of  the  legal  rights;" 
but  he  denies  that  recourse  to  force  may  be  had  for  this 
purpose  in  the  case  of  "trifling  injuries,"  and  he  adds : 
1 1  de  minimis  non  curat  lex ' ' — or,  the  law  does  not  take 
account  of  trifles.11 

The  right  of  angary  is  an  application  of  the  same 
principle  of  the  relativity  of  rights,  and  it  justifies  the 
seizure  of  innocent  neutral  property  in  time  of  war, 


10In  the  same  note,  Pradier  Fodere  quotes  Jouffroy 
(Catechisme  de  Droit  Naturel,  1841,  §  107,  p.  41)  as  declar- 
ing: "When  in  a  case  of  urgent  necessity  a  person  violates 
the  rights  of  another  in  the  belief  that  there  is  no  other  means 
to  save  his  innate  rights,  he  does  not  do  wrong  provided  that 
he  is  justified  in  believing  (pent  presumer)  that  the  other  to 
protect  those  rights  would  spontaneously  have  done  the  same. 
That  is  to  say,  1st,  when  to  defend  one  of  the  rights  essential 
to  the  preservation  of  a  man's  dignity,  he  violates  a  right  of 
another  less  essential  to  humanity;  2nd,  when  he  is  able  to 
make  the  reparation  which  he  owes." 

"Speaking  of  intervention  to  ward  off  imminent  danger, 
Lawrence  (Principles,  4  ed.,  §  65,  p.  127-8)  says:  "It  must 
be  sufficiently  important  in  itself  to  justify  the  expenditure 

of  blood  and  treasure  to  repel  it Governments  constantly 

submit  to  small  inconveniences  rather  than  resort  to  hos- 
tilities." 

Perhaps  it  is  fair  to  say  that  the  criticism,  whether  well 
founded  or  not,  that  fell  upon  Lord  Palmerston  because  of 
his  interposition  in  the  Don  Pacifico  affair  was  based  upon  the 
ground  of  the  relative  insignificance  of  the  claims  which 
Palmerston  sent  a  fleet  to  collect  from  Greece.  ( See  Hogan : 
Pacific  Blockade,  p.  105-115,  for  an  account  of  the  facts  of 
this  intervention.) 
26 

*ANTA  BARBARA  STATE  COLLEGE 


402  NON-INTERFERENCE 

and  the  seizure  of  any  property  generally  when  neces- 
sary for  the  preservation  of  the  state.  The  right  of 
undisturbed  possession  yields  to  the  superior  need  in 
as  far  as  is  necessary  to  meet  it.  But  the  extremity  of 
the  appropriating  state  does  not  stand  in  the  way  of  the 
payment  of  adequate  compensation12  and  even  of  resti- 
tution when  the  need  is  past. 

A  very  wide  recognition  of  the  principle  of  the  rela- 
tivity of  rights  is  shown  by  the  authorities  who  justify 
the  disregard  of  the  territorial  inviolability  of  a  neigh- 
boring state  when  necessary  for  self-preservation  and 
in  order  to  ward  off  an  imminent  peril.  Even  though 
the  real  justification  for  this  irruption  into  neighboring 
territory  is,  as  we  have  seen,  based  upon  another  and 
quite  distinct  principle,13  these  opinions  bear  testimony 

"Cf.  Twiss,  vol.  I,  p.  149 ;  Grotius,  Bk.  II,  ch.  II,  VIII ; 
Stowell  and  Munro:  International  Cases,  Vol.  II,  p.  544-557. 
When  possible,  the  same  principle  would  require  payment 
prior  to  ex-appropriation.  An  interesting  case  of  angary 
was  the  seizure  of  the  Dutch  vessels  in  the  ports  of  the  United 
States  during  the  recent  war.  ( See  J.  W.  Garner :  Interna- 
tional Law  and  the  World  War,  vol.  I,  p.  174-6.) 

Grotius  (Bk.  II,  ch.  II,  VII,  VIII,  IX,  Whewell's  transla- 
tion, vol.  I,  p.  239-240)  justifying  certain  alleged  "pristine 
rights"  of  all  mankind  and  declaring  that  they  are  revived 
by  necessity,  warns  that ' '  this  liberty  go  not  too  far. ' '  First, 
he  cautions  us  to  endeavor  to  avoid  using  it,  and  by  way  of 
illustration  he  adds :  ' '  Plato  allows  a  man  to  take  water  from 
his  neighbor's  well,  if  in  his  own  he  has  dug  down  to  the  chalk, 
seeking  water ;  and  Solon,  if  he  has  dug  his  own  ground  forty 
cubits.  For  as  Plutarch  says,  he  thought  that  necessity  was 
to  be  relieved,  not  idleness  encouraged;  and  Xenophon  says 
to  the  Sinopians,  If  we  are  not  allowed  to  buy,  we  must  take ; 
not  from  contempt  of  Rights,  but  from  necessity. ' ' 

"Secondly,  such  liberty  is  not  granted,  if  the  possessor  be 
in  like  necessity ; . . . .  Lactantius  says,  that  he  does  not  do 
amiss  who  abstains  to  thrust  a  drowning  man  from  a  plank, 
or  a  wounded  man  from  his  horse,  even  for  the  sake  of  his  own 
preservation.  So  Cicero ;  and  Curtius. 

"Thirdly,  that  when  it  is  possible,  restitution  be  made." 

13That  is,  self-help.     See  above,  §§  1  and  15. 


SELF-PRESERVATION  403 

to  the  recognition  of  the  existence  and  vitality  of  the 
principle  of  relativity.14 

It  is  certainly  a  defect  in  the  practical  application  of 
this  principle  that  to  each  state  is  left  the  liberty  of 
deciding  in  first  instance  whether  its  own  rights  are, 
relatively  to  the  rights  of  others,  of  such  an  importance 
as  to  justify  recourse  to  force  to  preserve  them.15 

We  must,  however,  remember  that  this  is  the  system 
of  sovereignty,  and  as  we  have  explained,  the  only  one 
which  is  practical  under  present  conditions.  *  *  The  con- 
scientious judgment  of  the  state,"  says  Westlake,  "act- 
ing on  the  right  thus  allowed  must  necessarily  stand  in 
the  place  of  authoritative  sanction,  so  long  as  the  pres- 
ent imperfect  organization  of  the  world  continues." 
(Westlake,  vol.  I,  p.  313.) 

The  decision  which  the  state  thus  makes  in  its  own 
case  is  not  conclusive,  and  if  arbitrary  and  evidently 
unreasonable — that  is  in  contradiction  to  the  law — the 


"Some  of  the  authorities  who  express  this  view  are  Twiss 
(vol.  I,  §  102,  p.  149),  Phillimore  (Commentaries,  1  ed.,  vol. 
I,  §  213,  p.  227),  and  Lawrence  (Principles,  4  ed.,  §  65,  p. 
127.) 

Halleck  (International  Law,  ch.  IV,  §  25,  p.  95),  criticising 
Phillimore 's  view,  points  out  the  contradiction  in  his  reason- 
ing, but  does  not  appear  himself  to  seize  the  principle  of 
relativity  for  which  Phillimore  is  groping. 

We  find  what  is  really  another  recognition  of  the  principle 
of  relativity,  although  it  is  also  based  upon  an  erroneous  in- 
terpretation of  principle:  I  refer  to  the  alleged  right  of 
transit,  or  passage  for  troops  across  neutral  territory.  (See 
Vattel,  Bk.  II,  ch.  IX,  §  123.  Pradier-Fodere 's  edition  sup- 
plies interesting  notes  to  this  passage  and  to  the  following 
sections  relating  to  the  right  of  "innocent  passage"  vol.  II, 
p.  108-116.) 

15The  failure  to  distinguish  between  a  liberty  of  each  state 
to  make  this  decision  subject  to  such  rectification  as  the  pro- 
cedure of  international  law  provides  and  an  absolute  or  per- 
fect right  to  decide  as  it  chooses  has  caused  much  confusion. 
We  shall  revert  to  this  matter  later  on. 


404  NON-INTERFERENCE 

other  states  will  either  counter-intervene  or  make  the 
transgressor  feel  the  weight  of  their  disapproval.18 

We  have  seen  that,  according  to  international  law, 
the  plea  of  self-preservation  or  necessity  is  not  an  ade- 
quate justification  for  the  overriding  of  rights  of  an- 
other state  in  order  to  survive.  The  plea  of  self-pres- 
ervation only  permits  such  recourse  to  force  as  is  nec- 
essary to  compel  other  states  to  fulfil  their  obligations 
of  mutual  helpfulness  and  cooperation.  We  must  now 
discuss  one  or  two  situations  of  peculiar  difficulty 
which  arise  in  practice. 

MILITARY  NECESSITY  may  be  defined  as  the  right  of  a 
belligerent  to  disregard  certain  rules  of  the  law  of  war 
when  justified  by  a  legitimate  military  purpose.  For 
instance,  the  obligation  to  respect  the  rights  of  prop- 
erty, whether  in  occupied  territory  or  elsewhere,  gives 
way  to  such  need  as  the  military  authorities  may  have 
to  effect  the  purpose  of  their  operations,  but  military 
necessity  does  not  justify  a  violation  of  the  rules  of 
honorable  warfare,  however  extreme  the  need.  The 
hope  of  salvation  for  the  state  defending  its  existence 
cannot  justify,  upon  the  plea  of  necessity,  any  depar- 
ture from  the  fundamental  laws  which  have  been 
learned  by  experience,  and  adopted  by  all  the  states  as 
essential  to  prevent  war  from  degenerating  into  an  in- 
discriminate slaughter,  like  the  contests  of  beasts. 
There  is  no  doubt  a  certain  latitude,  but  this  is  a  ques- 
tion which  is  more  properly  considered  under  the  laws 


16The  limitation  which  some  authorities  put  upon  justifiable 
action  for  self-preservation  is  really  a  question  of  the  reason- 
ableness of  satisfaction.  (Cf.  Halleck,  ch.  IV,  §  5,  p.  84.) 

Whenever  international  law  gives  a  right  of  action  for 
redress,  the  right  is  limited  to  what  is  reasonably  required 
for  satisfaction,  compensation,  and  security. 


SELF-PRESERVATION  405 

of  war  and  the  limits  of  military  reprisals.17  The  doc- 
trine of  military  necessity  from  the  point  of  view  of 
neutrality  is  of  particular  interest.  In  how  far  may 
the  state  acting  for  self-preservation  go  in  disregard- 
ing neutral  rights? 

MILITARY  NECESSITY  AND  NEUTRAL  BIGHTS 

Military  necessity  in  relation  to  neutral  rights  is 
probably  the  most  intricate  of  all  the  questions  which 
we  shall  have  to  discuss,  and  it  has  not  as  far  as  I  am 
aware  been  satisfactorily  treated  by  any  of  the  writers 
upon  the  law  of  nations.  To  understand  the  appli- 
cation of  the  principles,  it  is  first  necessary  to  under- 
stand the  nature  of  neutrality.  We  have  already  seen 
that  every  state  is  obligated  to  do  what  it  is  reasonably 
able  to  help  to  enforce  international  law,  and  to  repel 
aggression  against  its  sister  states.  Now  since  the  im- 
perfect system  of  international  law  leaves  to  each  state 
the  exercise  of  its  discretion  as  to  where  and  how  it 
should  act,  it  may  well  happen  that  an  injustice  be  done 
the  innocent  party  in  strife  through  a  failure  of  other 
states  to  be  reasonably  active  in  the  discharge  of  their 
obligation  to  cooperate  for  the  enforcement  of  justice. 
When  such  a  miscarriage  of  justice  occurs,  the  injured 
state  will  have  just  cause  of  complaint  against  neutral 


17The  laws  of  war  carry  with  them  their  own  sanction,  and 
the  belligerent  who  violates  them  will  be  in  danger  of  de- 
grading the  conflict  to  a  war  of  extermination  which  may 
work  the  destruction  of  both  parties,  but  will  tend  surely  to 
eliminate  the  transgressor  from  the  ranks  of  respectable 
states.  The  states  that  survive  today  are  those  that  have 
shown  a  proper  regard  for  the  laws  of  war,  or  at  least,  to 
state  a  truism,  we  may  say  that  they  have  shown  a  respect 
for  the  laws  of  war  adequate  to  permit  their  survival. 

In  addition  to  this  automatic  sanction  of  common  ruin, 
there  is  also  the  possibility  of  intervention  by  neutral  states. 
(See  above,  §  7.) 


406  NON-INTERFERENCE 

states,  and  since  states  have  ever  been  prone  to  regard 
their  own  cause  as  just,  they  have  generally  been  ready 
to  penalize  neutral  states  who  fail  to  intervene  in  sup- 
port of  what  the  belligerent  considers  justice,  i.  e.,  his 
own  cause.  In  this  atmosphere  has  grown  de  facto  a 
right  of  neutrality  for  those  states  only  that  were  suf- 
ficiently strong  to  insist  upon  enjoying  that  status.  As 
an  obligation  corresponding  to  this  right  of  neutrality, 
the  neutral  state  was  bound  to  enforce  upon  both  bel- 
ligerents alike  the  respect  of  its  neutrality.  The  point 
to  note  clearly  is  that  the  right  of  a  state  too  weak  to 
make  its  neutrality  respected  by  all  the  belligerents  can 
be  based  only  upon  the  sanction  of  other  states  cooper- 
ating to  make  it  respected.  In  the  absence  of  such  a 
collective  sanction,  a  belligerent  who  fears  that  his  ad- 
versary will  take  advantage  of  the  weakness  of  a  neu- 
tral state  will  not  dare  to  wait  until  by  the  violation  of 
the  neutral  territory  the  war  has  been  won.  In  this 
situation,  the  belligerent  who  has  ground  for  appre- 
hension will  anticipate  and  offer  the  neutral  too  weak 
to  defend  his  neutrality  the  choice  of  being  with  him 
or  against  him. 

It  is  reasonable  to  believe  that  the  bitter  lesson 
taught  by  the  recent  war  will  make  powerful  neutrals 
quicker  to  intervene  for  justice  in  future  wars,  in  which 
event  a  small  power  in  a  precarious  position  may  be 
allowed  to  remain  neutral  even  when  unable  to  defend 
its  neutrality  against  an  unscrupulous  belligerent. 

Let  us  hope  that  the  time  has  come  when  a  weak 
neutral  can  rely  on  the  support  of  other  states.  In  any 
event,  we  may  expect  to  find  in  practice  a  better  respect 
of  neutral  rights  on  the  part  of  belligerents. 

But  even  now  and  until  the  advance  is  reasonably 
certain,  there  is  some  justification  for  belligerents  pro- 
ceeding as  far  in  the  disregard  of  neutral  rights  as 
neutrals  and  other  states  will  tolerate,  provided  always 


SELF-PRESERVATION  407 

that  such  disregard  does  not  amount  to  an  act  of  bad 
faith  or  inhumanity,  which  is  contrary  to  the  funda- 
mental and  always  controlling  precepts  of  international 
law. 

Grotius  took  this  view  as  the  following  extract 
shows : 

"  Hence  we  may  collect  how  he  who  carries  on  a 
righteous  war  may  lawfully  seize  a  place  situate  in  a 
land  which  is  not  at  war ;  namely,  if  there  be  a  danger, 
not  imaginary,  but  certain,  that  the  enemy  will  seize 
that  place,  and  thence  do  irreparable  damage:  and 
next,  on  condition  that  nothing  be  taken  which  is  not 
necessary  for  this  purpose  of  caution,  for  example,  the 
mere  custody  of  the  place,  leaving  to  the  true  owner 
the  jurisdiction  and  the  revenues :  finally,  if  it  be  done 
with  the  intention  of  restoring  the  custody  to  the  true 
owner  as  soon  as  the  necessity  is  over. ' '  (Grotius :  De 
Jure  et  Pacis,  Bk.  II,  ch.  II,  X,  Whewells  's  translation, 
vol.  I,  p.  240-241.) 

Vattel,  with  a  reckless  disregard  of  consistency  with 
his  previously  expressed  opinion  (see  Bk.  Ill,  §  43) 
declares:  "Imperative  necessity  may  also  warrant  a 
belligerent  in  seizing  temporarily  a  neutral  town  and 
placing  a  garrison  there,  for  the  purpose  either  of  pro- 
tecting himself  against  the  enemy  or  of  anticipating 
the  designs  of  the  enemy  upon  the  same  town,  when  the 
sovereign  is  unable  to  defend  it."  (Vattel:  The  Law 
of  Nations,  Bk.  Ill,  ch.  VII,  §  122,  Carnegie  translation, 
p.  275.) 

Hall  discusses  this  situation  somewhat  fully:  "The 
right  of  self-preservation  in  some  cases  justifies  the 
commission  of  acts  of  violence  against  a  friendly  or 
neutral  state,  when  from  its  position  and  resources  it 
is  capable  of  being  made  use  of  to  dangerous  effect  by 
an  enemy,  when  there  is  a  known  intention  on  his  part 
so  to  make  use  of  it,  and  when,  if  he  is  not  forestalled, 


408  NON-INTERFERENCE 


it  is  almost  certain  that  he  will  succeed,  either  through 
the  helplessness  of  the  country  or  by  means  of  intrigues 
with  a  party  within  it.  The  case,  though  closely  anal- 
ogous to  that  already  mentioned,  so  far  differs  from 
it  that  action,  instead  of  being  directed  against  persons 
whose  behavior  it  may  be  presumed  is  not  sanctioned 
by  the  state,  is  necessarily  directed  against  the  state 
itself.  The  state  must  be  rendered  harmless  by  its  ter- 
ritory being  militarily  occupied,  or  by  the  surrender 
of  its  armaments  being  extorted.  Although  therefore 
the  measures  employed  may  be  consistent  with  amity 
of  feeling,  it  is  impossible  to  expect,  as  in  the  former 
case,  that  a  country  shall  consider  it  more  important 
that  the  threatened  state  shall  be  protected  than  that 
its  own  rights  of  sovereignty  shall  be  maintained  in- 
tact, and  while  the  one  state  may  do  what  is  necessary 
for  its  own  preservation,  the  other  may  resent  its 
action,  and  may  treat  it  as  an  enemy.  So  long  how- 
ever as  this  does  not  occur,  and  war  in  consequence 
does  not  break  out,  the  former  professes  that  its  oper- 
ations are  of  a  friendly  nature  ;  it  is  therefore  strictly 
limited  to  such  action  as  is  barely  necessary  for  its  ob- 
ject, and  it  is  evidently  bound  to  make  compensation 
for  any  injury  done  by  it.18 

18Hall  adds  the  following  note:  "Grotius  (De  Jure  Belli 
et  Pacis,  lib.  ii.  c.ii,  §  10)  gives  the  occupation  of  neutral 
territory,  under  such  circumstances  as  those  stated,  as  an 
illustration  of  the  acts  permissible  under  his  law  of  necessity  ; 
and  the  doctrine  of  Wolff  (Jus  Gentium,  §  339),  Lampredi 
(Jr.  Pub.  Univ.  Theorem,  pt.  iii.  cap.  vii.  §  4),  Kliiber  (§  44), 
Twiss  (i.  §  102),  etc.,  covers  the  view  expressed  in  the  text; 
its  best  justification,  however,  is  that  the  violation  of  the 
rights  of  sovereignty  contemplated  by  it  is  not  more  serious, 
and  is  caused  by  far  graver  reasons,  than  can  be  alleged  in 
support  of  many  grounds  of  defensive  intervention,  which 
have  been  acted  upon,  and  have  been  commonly  accepted  by 
writers.  For  defensive  intervention,  see  §  91."  [The  pas- 
sage from  Grotius  above  referred  to  is  that  which  we  have 
just  quoted.  E.  C.  S.] 


SELF-PRESERVATION  409 

'  *  The  most  remarkable  instance  of  action  of  the  kind 
in  question  is  that  which  is  presented  by  the  English 
operations  with  respect  to  Denmark  in  1807.  At  that 
time  the  Danes  were  in  possession  of  a  considerable 
fleet,  and  of  vast  quantities  of  material  of  naval  con- 
struction and  equipment;  they  had  no  army  capable 
of  sustaining  an  attack  from  the  French  forces  then 
massed  in  the  north  of  Germany ;  it  was  provided  by 
secret  articles  in  the  Treaty  of  Tilsit,  of  which  the 
British  government  was  cognizant,  that  France  should 
be  at  liberty  to  take  possession  of  the  Danish  fleet  and 
to  use  it  against  England;19  if  possession  had  been 
taken,  France  'would  have  been  placed  in  a  command- 
ing position  for  the  attack  of  the  vulnerable  parts  of 
Ireland,  and  for  a  descent  upon  the  coasts  of  England 
and  Scotland;'  in  opposition,  no  competent  defensive 
force  could  have  been  assigned  without  weakening  the 
Mediterranean,  Atlantic,  and  Indian  stations  to  a  de- 
gree dangerous  to  the  national  possessions  in  those 
regions;  the  French  forces  were  within  easy  striking 
distance,  and  the  English  government  had  every  reason 
to  expect  that  the  secret  articles  of  the  Treaty  of  Til- 
sit would  be  acted  upon.  Orders  were  in  fact  issued 
for  the  entry  of  the  corps  of  Bernadotte  and  Davoust 
into  Denmark  before  Napoleon  became  aware  of  the 
dispatch,  or  even  the  intended  dispatch,  of  an  English 
expedition.  In  these  circumstances  the  British  gov- 
ernment made  a  demand,  the  presentation  of  which  was 
supported  by  a  considerable  naval  and  military  force, 
that  the  Danish  fleet  should  be  delivered  into  the  cus- 
tody of  England;  but  the  means  of  defense  against 
French  invasion  and  a  guarantee  of  the  whole  Danish 

19Hall  is  in  error  here.  The  British  Government  may  have 
had  information  which  led  them  to  expect  that  the  treaty 
would  be  made,  but  the  British  Expedition  was  decided  upon 
before  the  treaty  was  signed. 


410  NON-INTERFERENCE 

possessions  were  at  the  same  time  offered,  and  it  was 
explained  that  'we  ask  deposit — we  have  not  looked  for 
capture;  so  far  from  it,  the  most  solemn  pledge  has 
been  offered  to  your  government,  and  it  is  hereby  re- 
newed, that,  if  our  demand  be  acceded  to,  every  ship  of 
the  navy  of  Denmark  shall,  at  the  conclusion  of  a  gen- 
eral peace,  be  restored  to  her  in  the  same  condition  and 
state  of  equipment  as  when  received  under  the  pro- 
tection of  the  British  flag.'  The  emergency  was  one 
which  gave  good  reason  for  the  general  line  of  conduct 
of  the  English  government.  The  specific  demands  of 
the  latter  were  also  kept  within  due  limits.  Unfortu- 
nately Denmark,  in  the  exercise  of  an  indubitable  right, 
chose  to  look  upon  its  action  as  hostile,  and  war  en- 
sued, the  occurrence  of  which  is  a  proper  subject  for  ex- 
treme regret,  but  offers  no  justification  for  the  harsh 
judgments  which  have  been  frequently  passed  upon 
the  measures  which  led  to  it. "  (Hall:  International 
Law,  4th  ed.,  1895,  §  85,  p.  284-7.) 


20Hall  adds  the  following  in  a  note:  "Alison,  Hist,  of 
Europe,  VI:  474-5;  De  Garden,  Hist,  des  Traites  de  Paix, 
X:  238-243  and  325-331.  Writers  who  still  amuse  them- 
selves by  repeating  the  attacks  upon  the  conduct  of  England, 
which  were  formerly  common,  might  read  with  profit  the 
account  of  the  transaction  given  by  the  best  French  historian 
who  has  dealt  with  the  Napoleonic  period  (Lanfrey:  Hist, 
de  Napoleon  ler,  IV:  146-9),  [and  Professor  T.  E.  Holland's 
addition  to  Hall's  note]  and  the  comments  on  the  English 
policy  by  Captain  Mahan  of  the  U.  S.  Navy,  '  Influence  of  Sea 
Power  upon  the  French  Revolution  and  Empire,'  II:  277." 

Nassau  Senior,  a  loyal  Englishman  of  the  highest  standing, 
remarks :  ' '  Such  was  the  pretence  on  which  we  seized  Copen- 
hagen in  1807;  but  who  will  now  venture  to  defend  that 
occupation?"  (Nassau  Senior:  Article  in  Edinburgh 
Review,  April,  1843,  vol.  156,  p.  328.) 

Travers  Twiss  is  in  agreement  with  Hall.  He  writes: 
' '  Urgent  and  indisputable  danger  may  even  authorize  a  nation, 
to  occupy  the  territory  of  a  neutral  nation  in  order  to  prevent 
the  execution  of  an  enemy's  intention  to  occupy  it  for  the 


SELF-PRESERVATION  411 

Hall  has  not  included  what  was  perhaps  the  most 
significant  incident  connected  with  these  events.    The 

purposes  of  carrying  on  its  hostilities  with  greater  advantage, 
whenever  the  nation  to  which  the  territory  belongs  is  unable 
or  unwilling  to  defend  it.  But  the  exercise  of  this  right, 
which  Kliiber  (Pt.  II,  §  44)  regards  as  a  right  of  necessity, 
entails  the  obligation  to  make  compensation  to  the  neutral 
state  for  any  damages  which  may  have  accrued  to  it." 
(Travers  Twiss:  The  Law  of  Nations,  vol.  I,  1861,  §  102, 
p.  150.) 

And  Westlake  who  has  given  us  the  best  refutation  of  the 
so-called  doctrine  of  necessity,  avoids  Hall's  misstatement  of 
facts  but  reaches  the  same  conclusion:  "Perhaps  the  most 
memorable  instance  of  political  action  on  the  ground  of  self- 
preservation,  justifiable  in  our  opinion,  is  that  of  the  seizure 
of  the  Danish  fleet  by  England  in  1807.  After  the  treaty  of 
Tilsit  there  was  good  reason  for  believing  that  Napoleon  and 
the  czar  Alexander,  in  order  to  obtain  a  great  increase  of 
naval  power  against  England,  intended  to  compel  Denmark, 
by  force  if  necessary,  to  join  them  in  the  war.  The  British 
government  demanded  of  Denmark  the  surrender  of  her  fleet, 
offering  the  most  solemn  pledge  that  on  the  conclusion  of  a 
general  peace  it  should  be  restored  in  the  same  condition  and 
state  of  equipment  as  when  received.  And  on  meeting  with 
a  refusal  it  caused  the  fleet  to  be  captured  by  force  of  arms. 
Such  a  case  is  essentially  similar  to  that  of  a  belligerent 
having  sure  information  that  his  enemy,  in  order  to  obtain  a 
strategic  advantage,  is  about  to  march  an  army  across  the 
territory  of  a  neutral  clearly  too  weak  to  resist,  in  which 
circumstances  it  would  be  impossible  to  deny  him  the  right 
of  anticipating  the  blow  on  the  neutral  territory.  The  prin- 
ciple that  the  legal  rights  of  a  state  are  not  to  be  violated 
without  its  own  fault  is  not  really  infringed,  for  when  a 
state  is  unable  of  itself  to  prevent  a  hostile  use  being  made  of 
its  territory  or  its  resources,  it  ought  to  allow  proper  measures 
of  self -protection  to  be  taken  by  the  state  against  which  the 
hostile  use  is  impending,  or  else  must  be  deemed  to  intend  that 
use  as  the  necessary  consequence  of  refusing  the  permission. 
It  is  a  principle  of  jurisprudence  that  every  one  is  presumed 
to  intend  the  necessary  consequences  of  his  actions.  We  can- 
not therefore  subscribe  to  the  condemnation  which  many  con- 
tinental writers  have  pronounced  on  the  conduct  of  England 
in  1807."  (Westlake:  International  Law,  Vol.  I,  p.  315- 
316.) 


NON-INTERFERENCE 

British  plenipotentiary,  desirous  of  limiting  the  harsh 
ness  of  the  measures  so  as  not  to  humiliate  the  Danes 
unnecessarily,  had  agreed  to  withdraw  the  British 
forces  from  the  captured  island  of  Zealand  within  a 
short  period.  But  in  view  of  the  hostility  of  Denmark, 
which  was  naturally  to  be  expected,  the  retention  of 
this  position  became  a  matter  of  the  greatest  military 
importance.  Nevertheless^  the  British  Government 
honorably  carried  out  the  unfortunate  terms  of  their 
plenipotentiary,  which  they  might,  with  some  justifi- 
cation, have  regarded  as  a  sponsion.  Evidently  in  their 
minds  the  faithful  observance  of  a  treaty  took  prece- 
dence over  military  necessity  even  in  a  case  of  such 
urgency  as  the  one  under  consideration.21 

The  principle  which  Westlake  formulates  is  correct,  but 
we  may  question  its  application  in  the  present  instance.  For 
why  should  Denmark  be  held  responsible  for  the  evil  conse- 
quences to  others  which  might  be  expected  to  result  from  the 
commission  of  an  assault  upon  her  own  rights  1  Before  West- 
lake 's  principle  can  apply,  it  must  be  shown  that  Denmark 
was  herself  a  secretly  active  or  negligently  complaisant  party 
to  Napoleon 's  designs.  England 's  defense  must  rest  on  other 
grounds  which  are  discussed  in  the  text. 

Lawrence  remarks:  "In  all  probability  men  will  differ  as 
long  as  International  Law  is  studied,  about  the  seizure  of  the 
Danish  fleet  by  Great  Britain  in  1807."  (T.  J.  Lawrence: 
The  Principles  of  International  Law,  4  ed.,  §  65,  p.  127-8.) 

"September  22,  1807,  Lord  Castlereagh  wrote  Lord  Cath- 
cart,  "We  are,  above  all  things,  anxious  to  preserve  our  char- 
acter for  good  faith  untainted,  but ..."  and  he  went  on  to 
explain  the  desirability  of  reoccupying  Zealand  as  soon  as  it 
might  honorably  be  done.  ( Castlereagh 's  Correspondence, 
Dispatches,  and  Other  Papers,  ed.  by  C.  W.  Vane,  Marquis 
of  Londonderry,  2nd  Series,  London,  1851,  vol.  VI,  p.  179-181, 
184.) 

Mr.  Ponsonby  twitted  the  government  for  withdrawing  from 
Zealand.  "Why,"  he  asked,  "so  shabby  in  our  iniquities? 
When  we  imitated  the  atrocities  of  the  ruler  of  France,  why 
not  imitate  the  grandeur  and  magnificence  of  his  designs!" 
(Parliamentary  Debates,  vol.  X,  p.  265.)  Canning  defended 
the  conduct  of  the  Government  (ibid,  p.  278),  but  in  a  letter 


SELF-PRESERVATION  413 

The  case  of  Copenhagen  has  often  been  referred  to 
by  German  sympathizers  as  exactly  comparable  with 
that  of  Belgium,  but  the  two  cases  obviously  are  not 
based  upon  the  same  principles.  Firstly,  in  the  case  of 
the  invasion  of  Belgium,  Germany's  own  uncompro- 
mising— we  might  say  aggressive — conduct  made  war 
inevitable  and  created  the  necessity,  if  such  there  was. 
Secondly,  it  would  appear  that  the  war  might  have  been 
fought  without  invading  Belgium,  and  hindsight  has 
shown  how  much  wiser  were  those  of  the  Kaiser's 
advisers  who  urged  another  plan.  But  after  all,  these 
two  reasons  are  of  lesser  moment  than  those  which  fol- 
low. Thirdly,  Germany  had  solemnly  pledged  her 
word  to  defend  the  neutrality  of  Belgium,  whereas,  in- 
stead of  keeping  faith,  she  treacherously  invaded  the 
territory  of  an  innocent  nation.  Fourthly,  Germany 
unworthily  attempted,  by  bearing  false  witness,  to 
make  her  own  people  and  neutral  nations  believe  that 
the  invasion  was  justified  by  prior  violations  of  Bel- 
gian territory,  into  which,  Germany  declared,  French 
troops  had  penetrated.  Thus,  Germany  herself  violated 
a  treaty  into  which  she  had  entered  with  a  full  knowl- 
edge of  all  the  circumstances  and  from  which  she  had 
for  many  years  derived  advantage. 

In  honorable  contrast  with  this  conduct,  England 
may  be  justly  proud  of  the  scrupulousness  with  which 
in  1807  her  Government  refused  to  make  necessity  a 
ground  for  repudiation  of  the  agreement  into  which 
they  entered,  we  might  say  unwittingly.  It  would  not 
necessarily  follow  that  the  precedents  of  a  hundred 


of  September  23,  1807,  to  Mr.  Ross,  his  private  secretary,  he 
complained  of  the  agents  who  had  made  the  agreement. 
(Letters  of  the  First  Earl  of  Malmesbury,  London,  1870,  vol. 
II,  p.  51.  Cf.  Diaries  and  Letters  of  Sir  George  Jackson, 
1872,  vol.  II,  p.  218,  Rose  Canning  and  Denmark,  in  English 
Historical  Review,  1896,  p.  90.) 


414  NON-INTERFEEENCE 

years  ago  should  be  made  the  models  of  to-day,  but  in 
a  situation  similar  to  that  which  faced  England  in 
1807,  when  the  autocracies  of  France  and  Russia  com- 
bined to  compass  her  ruin,  I  believe  that  any  intelligent 
government  would  disregard  the  neutrality  of  a  power 
too  weak  to  prevent  itself  from  becoming  an  involun- 
tary instrument  for  the  carrying  out  of  the  enemy's  de- 
signs. 

If  a  high-minded  and  intelligent  government  would 
follow  the  precedent  of  1807,  we  should  praise  and  not 
blame  England  for  it.  But  it  is  to  be  hoped  that  a 
nearer  sense  of  the  obligation  which  rests  upon  all 
of  the  states  to  defend  the  independence  of  any  one  of 
them  from  attack  will  henceforth  render  such  an  act  of 
prevention  at  one  and  the  same  time  unnecessary  and 
inexpedient. 

§  17.     BALANCE  OF  POWER 

Among  independent  states,  the  maintenance  of  the 
political  equilibrium  is  a  matter  of  constant  attention. 
It  is  almost  as  instinctive  for  the  statesman  incessantly 
to  make  the  countless  little  moves  which  are  necessary 
for  the  purpose  as  it  is  for  an  individual  to  call  into 
play  the  different  muscles  which  maintain  his  balance 
and  keep  him  erect.22 

Since  every  state  that  is  not  increasing  its  relative 
influence  in  international  affairs  is  anxious  at  least  to 
preserve  existing  advantages,  it  is  natural  that  this 

"Polybius,  Let.  I,  Cap.  83,  cited  by  W.  A.  Phillips  in  his 
article  on  the  Balance  of  Power,  Encyclopedia  Brittanica, 
vol.  Ill,  p.  235,  writes:  "Nor  is  such  a  principle  to  be 
despised,  nor  should  so  great  a  power  be  allowed  to  any  one 
as  to  make  it  impossible  for  you  afterwards  to  dispute  with 
him  on  equal  terms  considering  your  manifest  rights." 

In  the  article  just  referred  to,  Phillips  says :  "  In  its  essence, 
it  is  no  more  than  a  precept  of  common  sense  born  of  experi- 
ence and  the  instinct  of  self-preservation." 


BALANCE  OF  POWER  415 

similarity  of  purpose  should  constitute  a  basis  for 
cooperative  action.  The  supporters  of  the  policy  of 
conservation  would  preserve  the  political  equilibrium 
of  states  by  the  maintenance  of  existing  relations, — 
that  is,  they  defend  the  status  quo.  The  weaker  states 
that  fear  to  be  swallowed  up  by  the  great  states  are 
generally  of  this  persuasion,  and  sometimes  this  group 
will  be  found  to  include  a  great  state  possessed  of 
greater  territory  than  it  can  expect  to  defend  by  its 
unaided  force  against  the  encroachments  and  cupidity 
of  its  rivals. 

A  different  method  is  advocated  by  a  second  group 
composed  of  states  of  great  power  and  insatiable  land 
hunger  who  wish  to  acquire  new  territories  without  the 
danger  and  expense  of  war.  They  would  apportion 
among  themselves  the  territory  of  any  state  upon  which 
they  have  cast  their  covetous  eyes.  The  best  instance 
of  the  application  of  this  method  of  maintaining  the 
political  equilibrium  was  the  partition  of  Poland  at  the 
end  of  the  eighteenth  century.  But  this  doctrine  of 
partition  in  order  to  maintain  the  balance  of  power 
is  nothing  but  another  name  for  conquest.  It  can  make 
no  claim  to  the  recognition  of  international  law,  since 
its  purpose  is  to  build  up  the  territories  of  the  great 
powers  through  the  spoliation  of  their  weak  and  un- 
offending neighbors.  In  practice  the  partition  of  the 
coveted  territories  does  not  meet  the  basic  test  of  law. 
It  is  not  generally  effective  in  maintaining  peace.  On 
the  contrary,  it  sows  the  seeds  of  greater  discord.23 


23In  the  event  that  a  small  state  is  unable  to  fulfil  its 
international  obligations,  so  that  its  territory  becomes  a  cause 
of  disturbance  for  neighboring  powers  and  an  international 
nuisance,  the  surrounding  powers  would  be  justified  in  taking 
such  reasonable  action  as  is  necessary  to  police  the  territory 
and  to  remove  the  cause  of  disturbance.  See  above  §  9,  and 
under  §  15. 


416  NON-INTERFERENCE 

The  brazen  doctrine  of  partition  has  had  an  inter- 
esting history  of  its  own.  The  first  crude  method  of 
equal  division  was  improved  upon  so  as  to  permit  the 
carving  up  of  the  seized  territory  in  such  a  manner  as 
to  preserve  the  proportionate  strength  of  the  partition- 
ing powers.24 

As  evidence  of  the  prevalence  of  this  doctrine,  we 
may  quote  from  so  liberal  a  thinker  as  Sir  Robert 
Morier,  who  was  in  general  no  admirer  of  Napoleon 
III.  He  writes  his  father  from  Vienna,  June  20,  1866 : 
"That,  if  there  should  result  from  this  war  [Austro- 
Prussian]  great  territorial  changes  such  as  to  alter 
very  gravely  the  relative  strength  of  the  military  mon- 
archies of  Europe,  France  should  expect  some  corre- 
sponding advantages,  is  so  absurdly  fair  that  it  is  in- 
conceivable to  me  that  even  that  dullest  of  corniferi, 
John  Bull,  should  shake  his  foolish  head  at  it.*'25  (Me- 
moirs and  Letters  of  Sir  Robert  Morier,  vol.  II,  p.  67.) 

In  this  connection,  and  in  view  of  subsequent  events, 
it  is  interesting  to  read  what  Lord  Palmerston  wrote 
Lord  Clarendon,  March  1,  1857 :  "As  to  the  Emperor's 
schemes  about  Africa,  the  sooner  Cowley  sends  in  his 
grounds  of  objection  the  better.  It  is  very  possible 
that  many  parts  of  the  world  would  be  better  governed 
by  France,  England,  and  Sardinia  than  they  are  now ; 
and  we  need  not  go  beyond  Italy,  Sicily,  and  Spain  for 
examples.  But  the  alliance  of  England  and  France  had 
derived  its  strength  not  merely  from  the  military  and 
naval  power  of  the  two  states,  but  from  the  force  of  the 


"See  Charles  Dupuis:  Le  principe  de  1'equilibre,  p.  41. 

25The  project  of  a  partition  of  Belgium  in  the  handwriting 
of  Benadetti  was  given  out  by  Bismarck  and  published  in  the 
London  Times  upon  the  outbreak  of  the  Franco-German  War. 
It  did  much  to  alienate  the  sympathy  of  England  and  to 
lessen  her  desire  of  intervention.  (See  International  Relations 
by  the  correspondent  of  "The  Times"  [Blowitz]  at  Berlin, 
Vol.  II,  p.  190f.) 


BALANCE  OF  POWER  417 

moral  principle  upon  which  that  union  has  been  found- 
ed. Our  union  has  for  its  foundation  resistance  to  un- 
just aggression,  the  defense  of  the  weak  against  the 
strong,  and  the  maintenance  of  the  existing  balance  of 
power.  How,  then,  could  we  combine  to  become  un- 
provoked aggressors,  to  imitate,  in  Africa,  the  partition 
of  Poland  by  the  conquest  of  Morocco  for  France,  of 
Tunis  and  some  other  state  for  Sardinia,  and  of  Egypt 
for  England!  and,  more  especially,  how  could  England 
and  France,  who  have  guaranteed  the  integrity  of  the 
Turkish  Empire,  turn  round  and  wrest  Egypt  from  the 
Sultan!  A  coalition  for  such  a  purpose  would  revolt 
the  moral  feelings  of  mankind,  and  would  certainly  be 
fatal  to  any  English  Government  that  was  a  party  to 
it.  Then,  as  to  the  balance  of  power  to  be  maintained 
by  giving  us  Egypt.  In  the  first  place,  we  don't  want 
to  have  Egypt.  What  we  wish  about  Egypt  is  that 
it  should  continue  attached  to  the  Turkish  empire, 
which  is  a  security  against  its  belonging  to  any  Euro- 
pean power.  We  want  to  trade  with  Egypt,  and  to 
travel  through  Egypt,  but  we  do  not  want  the  burthen 
of  governing  Egypt,  and  its  possession  would  not,  as  a 
political,  military,  and  naval  question,  be  considered, 
in  this  country,  as  a  set-off  against  the  possession  of 
Morocco  by  France.  Let  us  try  to  improve  all  these 
countries  by  the  general  influence  of  our  commerce, 
but  let  us  all  abstain  from  a  crusade  of  conquest  which 
would  call  down  upon  us  the  condemnation  of  all  the 
other  civilized  nations. 

''This  conquest  of  Morocco  was  the  secret  aim  of 
Louis  Philippe,  and  is  one  of  the  plans  deposited  for 
use,  as  occasion  may  offer,  in  the  archives  of  the  French 
Government."  (Ashley:  Life  of  Palmer ston,  vol.  II, 
p.  125-6.) 

The  tenet  of  the  first  school — that  which  defends  the 
rigid  maintenance  of  the  status  quo — may  not  appear 
27 


418  NON-INTERFERENCE 

so  abhorrent,  but  it  has  no  greater  justification  in  in- 
ternational law  than  the  doctrine  of  conquest,  called 
partition.  The  latter  in  any  event  does  allow  the  states 
of  exuberant  strength  to  acquire  new  territories,  while 
the  former  would  put  the  world  in  a  strait-jacket.26 
We  must  therefore  relegate  these  two  time-honored  doc- 
trines to  the  sphere  of  politics  of  which  they  are  an 
interesting,  if  not  happy,  expression.  Unfortunately, 
many  of  the  writers  upon  international  law  have  failed 
to  perceive  this,  and  have  been  led  into  a  regrettable 
confusion.  They  have  done  much  to  obscure  the  under- 
standing of  the  balance  of  power.27 

26We  must  remember  that  the  maintenance  of  the  body  of 
independent  states  is  justified  as  an  instrument  of  human 
peace  and  progress,  but  it  would  be  the  height  of  intellectual 
arrogance  to  assume  that  any  existing  relationship  was  the 
end  of  human  achievement.  It  is  impossible  to  arrest  the 
march  of  progress  by  any  combination  to  maintain  the  status 
quo.  Hence  it  would  be  as  ineffectual  as  immoral  to  attempt 
to  enforce  any  rule  which  should  forbid  to  the  independent 
states  of  the  world  a  gradual  growth  and  evolution  toward 
more  perfect  forms.  Lorimer  (Institutes  of  the  Law  of 
Nations,  1884,  vol.  II,  p.  197-208)  points  out  that  the  doctrine 
of  the  balance  of  power  was  set  up  by  the  states  in  order  to 
maintain  the  status  quo,  and  from  this  point  of  view  he  levels 
at  it  a  searching  and  destructive  criticism  which  everyone 
should  read.  But  Lorimer  and  other  writers,  with  the  pos- 
sible exception  of  Nassau  Senior,  seem  not  to  have  observed 
that  the  recognition  of  the  doctrine  of  the  balance  of  power 
by  the  states  and  the  enforcement  of  it  in  practice  have  had 
other  legitimate  and  valuable  results  which  we  note  further 
along. 

27In  regard  to  the  attempt  to  justify  the  partition  treaties 
of  1698  and  1700  for  the  partition  of  the  Spanish  succession, 
Creasy  refers  to  what  Lord  Macaulay  has  written,  and  re- 
marks: "A  zealot  for  William  III  will  probably  think  that 
defense  successful.  To  others  it  may  appear  that  the  direct 
gross  injury  of  violently  dismembering  an  unoffending  state 
against  its  will,  far  outweighs  any  speculative  good  that  can 
be  effected  by  preventing  a  possible  disarrangement  of  the 
political  equilibrium  of  Europe."  (First  Platform  of  Inter- 
national Law,  p.  287.) 


BALANCE  OF  POWER  419 

Other  writers  have  added  to  the  confusion  of  the 
discussion  by  classing  under  the  balance  of  power 


But  I  cannot  share  Sir  Edward  Creasy 's  high  opinion  of 
Macaulay's  argument,  and  I  think  an  examination  will  bear 
me  out. 

Lord  Macaulay's  justification  of  the  partition  treaty  is  as 
follows : 

"It  has  been  said  to  have  been  unjust  that  three  states 
should  have  combined  to  divide  a  fourth  state  without  its  own 
consent;  and,  in  recent  times,  the  partition  of  the  Spanish 
monarchy  which  was  meditated  in  1698  has  been  compared 
to  the  greatest  political  crime  which  stains  the  history  of 
modern  Europe,  the  partition  of  Poland.  But  those  who  hold 
such  language  cannot  have  well  considered  the  nature  of  the 
Spanish  monarchy  in  the  seventeenth  century.  That  mon- 
archy was  not  a  body  pervaded  by  one  principle  of  vitality 
and  sensation.  It  was  an  assemblage  of  distinct  bodies,  none 
of  which  had  any  strong  sympathy  with  the  rest,  and  some 
of  which  had  a  positive  antipathy  for  each  other.  The 
partition  planned  at  Loo  was  therefore  the  very  opposite 
of  the  partition  of  Poland.  The  partition  of  Poland  was  the 
partition  of  a  nation.  It  was  such  a  partition  as  is  effected 
by  hacking  a  living  man  limb  from  limb.  The  partition 
planned  at  Loo  was  the  partition  of  an  ill-governed  empire 
which  was  not  a  nation.  It  was  such  a  partition  as  is  effected 
by  setting  loose  a  drove  of  slaves  who  have  been  fastened 
together  with  collars  and  handcuffs,  and  whose  union  has 
produced  only  pain,  inconvenience  and  mutual  disgust.  There 
is  not  the  slightest  reason  to  believe  that  the  Neapolitans 
would  have  preferred  the  Catholic  King  to  the  Dauphin,  or 
that  the  Lombards  would  have  preferred  the  Catholic  King 
to  the  Arch-duke.  How  little  the  Guipuscoans  would  have 
disliked  separation  from  Spain  and  annexation  to  France  we 
may  judge  from  the  fact  that,  a  few  years  later  the  States  of 
Guipuscoa  actually  offered  to  transfer  their  allegiance  to 
France  on  condition  that  their  peculiar  franchises  should  be 
held  sacred. 

"One  wound  the  partition  would  undoubtedly  have  in- 
flicted, a  wound  on  the  Castilian  pride.  But  surely  the  pride 
which  a  nation  takes  in  exercising  over  other  nations  a  blight- 
ing and  withering  dominion,  a  dominion  without  prudence 
or  energy,  without  justice  or  mercy,  is  not  a  feeling  entitled 
to  much  respect.  And  even  a  Castilian  who  was  not  greatly 
deficient  in  sagacity  must  have  seen  that  an  inheritance  claimed 


420  NON-INTERFERENCE 

counter-intervention  by  third  states  to  prevent  a  state 
which  has  vanquished  its  rival  from  disturbing  the 


by  two  of  the  greatest  potentates  in  Europe  could  hardly  pass 
entire  to  one  claimant;  that  a  partition  was  therefore  all 
but  inevitable;  and  that  the  question  was  in  truth  merely 
between  a  partition  effected  by  friendly  compromise  and  a 
partition  effected  by  means  of  a  long  and  devastating  war. 

"There  seems,  therefore,  to  be  no  ground  at  all  for  pro- 
nouncing the  terms  of  the  Treaty  of  Loo  unjust  to  the  Em- 
peror, to  the  Spanish  monarchy  considered  as  a  whole,  or  to 
any  part  of  that  monarchy."  (The  History  of  England  from 
the  Accession  of  James  II  by  Thomas  Babington  Macaulay, 
Chapt.  XXIV,  p.  363-4.) 

Answering  the  charge  that  the  partition  of  the  Spanish 
Monarchy,  contemplated  by  the  Treaty  of  Loo,  1698,  was  to 
be  compared  with  the  partition  of  Poland,  which  he  charac- 
terizes as  ' '  the  greatest  political  crime  which  stains  the  history 
of  modern  Europe,"  Macaulay  defends  the  conduct  of  the 
governments  concerned  on  the  ground  that  there  was  no  senti- 
ment of  national  unity  between  the  different  parts,  and  that 
it  was  an  advantage  to  certain  regions  to  free  them  from  the 
Spanish  yoke.  He  considers  that  the  only  hurt  was  to  Spanish 
national  pride,  but  this  he  did  not  consider  was  sufficient 
cause  to  restrain  the  action  of  the  powers. 

But  Macaulay  does  not  appear  sufficiently  to  have  taken 
into  account  the  national  rights  of  the  Spanish  people.  The 
greatness  of  Spain  was  in  part  due  to  the  energy  and  sacri- 
fices of  the  Spanish  people,  and  in  part  to  the  fortunate  in- 
heritance of  their  sovereigns  of  foreign  territory.  As  a 
matter  of  right,  it  is  not  clear  that  the  political  aims  of 
England  and  Holland  were  a  sufficient  justification  for  the 
partition.  There  was,  however,  a  just  ground  for  preventing 
Louis  XIV  from  effecting  a  combination  between  the  two 
states  by  placing  a  scion  of  his  house  on  the  Spanish  throne. 

It  is  probably  true,  as  Macaulay  declares,  that  had  the 
Spanish  King  died  that  year,  the  Treaty  of  Loo  would  have 
been  observed  by  Louis  XIV,  and  have  preserved  the  peace 
of  Europe.  The  certainty  of  avoiding  a  great  European  war 
might,  as  a  matter  of  expediency,  seem  to  permit  the  powers 
to  disregard  Spanish  national  pride  and  the  sovereign  rights 
of  Spain.  But  it  is  not  certain  that  peace  could  not  have 
been  preserved  by  some  other  means,  and  it  is  by  no  means 
certain  that  France  would  have  accepted  the  treaty.  Subse- 
quent events  showed  that  this  serious  interference  with  Spanish 


BALANCE  OF  POWER  421 

political  equilibrium  by  an  unjust  annexation  of  terri- 
tory. Any  and  all  of  the  states  are  of  course  justified 
and  obligated  to  do  what  is  reasonably  possible  in  pre- 
venting the  conqueror  from  exacting  an  unreasonable 
satisfaction,  such  as  an  excessive  annexation  of  terri- 
tory. In  those  instances  when  other  states  have  been 
apprehensive  that  the  excessive  annexation  would  dis- 
turb the  political  equilibrium,  they  have  naturally  been 
especially  active  in  preventing  it.  But  such  interven- 
tions from  a  legal  viewpoint  were  no  more  than  ordi- 
nary instances  of  counter-intervention  for  the  vindi- 
cation of  the  law  and  the  prevention  of  conquest.  Ig- 
noring this,  statesmen  and  many  of  the  text-writers 
have  regarded  this  action  entirely  from  the  point  of 
view  of  the  political  motive  which  inspired  it.  They 
have  therefore  classified  it  by  its  political  motive  as  an 
instance  of  action  to  maintain  the  balance  of  power  in- 
stead of  by  its  juridical  purpose  as  counter-interven- 
tion.28 


rights  which  the  allied  powers  agreed  to  upon  the  supposition 
that  the  king  was  moribund  was  unavailing.  It  did  not  pre- 
vent the  war.  It  may  not  be  unreasonable  to  suggest  that 
the  result  of  the  partition  treaty  was  to  embitter  the  strife 
and  cause  a  prolongation  of  the  disastrous  conflict.  Louis 
XIV  may  have  found  some  justification  for  his  repudiation 
of  a  treaty  which  contemplated  an  illegal  act,  especially  when 
he  had  been  constrained  to  give  his  consent  to  it.  Thus  it  is 
evident  the  vices  in  the  original  treaty  bore  bitter  fruit. 

A  recent  and  striking  instance  of  partition  on  the  ground 
of  the  maintenance  of  the  balance  of  power  was  Great  Britain 's 
acquisition  of  Wei-Hai-Wei  to  balance  Russia's  occupation 
of  Port  Arthur.  (See  Robin:  Occupations,  p.  524-5.) 

28Strauch  recognizes  the  right  of  intervention  for  the 
preservation  of  the  balance  of  power  when  it  is  endangered 
by  the  acquisition  of  territory  as  the  result  of  war.  (Inter- 
ventionslehre,  p.  11 ;  see  also  Vattel,  Bk.  Ill,  §  49.) 

A  careful  reading  of  Fenelon's  interesting  discussion  of 
the  right  and  expediency  of  forming  offensive  and  defensive 


422  NON-INTERFERENCE 

A  similar  confusion  has  been  made  where  states  have 
combined  against  a  power  that  has  given  evidence  by 
its  conduct  that  it  was  preparing  to  subjugate  its 
neighbors  in  the  hope  of  acquiring  a  commanding  posi- 
tion in  world  affairs.  We  have  already  referred  to  the 
justice  of  thwarting  these  designs  by  way  of  preven- 
tion. Essentially  this  is  action  for  self-defense,  al- 
though it  is  anticipatory  in  form. 

When  the  discussion  of  the  balance  of  power  ranges 
over  these  four  classes  of  state  action  without  dis- 
tinguishing them  carefully  one  from  another,  we  can- 
not wonder  that  no  very  clear  understanding  of  the 
juridical  principles  applying  to  intervention  for  the 
preservation  of  the  balance  of  power  has  been  reached. 

It  is  interesting  to  follow  the  history  of  the  doctrine 
of  the  balance  of  power,  as  M.  Charles  Dupuis  has  done 


alliances  against  a  power  which  threatens  to  become  pre- 
ponderating shows  that  he  was  considering  more  particularly 
the  obligation  to  organize  a  collective  counter-intervention 
against  a  great  power  which  should  attack  a  weaker  neighbor. 
(The  French  text  is  quoted  by  Phillimore:  Commentaries, 
1  ed.,  1854,  vol.  I,  p.  520-525.) 

Halleck's  discussion  of  the  balance  of  power  treats  mainly 
of  action  to  prevent  conquest.  ( Halleck :  International  Law, 
ch.  XIV,  §§  13-18,  p.  335-8.) 

Sheldon  Amos  says  that  the  balance  of  power  "  ....  is,  in 
fact,  now  little  more  than  a  convertible  expression  for  the 
policy  of  maintaining  the  territorial  integrity  and  inde- 
pendence of  the  smaller  states."  (Sheldon  Amos:  Remedies 
for  War,  p.  201.) 

No  doubt  this  theory  has  been  useful  to  check  the  too  rapid 
absorption  of  the  small  powers  by  their  great  neighbors.  For 
centuries  England  has  saved  Portugal,  Belgium,  Holland, 
Denmark,  and  other  small  states  from  extinction,  and  this 
is  perhaps  the  explanation  of  Sheldon  Amos's  sweeping 
statement. 


BALANCE  OF  POWER  423 

for  us  so  admirably  in  a  recent  volume.29  But  we  are 
here  primarily  concerned  in  finding  out  what  the  law 
of  intervention  relative  to  this  matter  now  is ;  and  for 
this  purpose,  we  are  obliged  to  examine  the  practice  of 
states.  What  states  now  do  and  have  done  in  the  past, 
and  justified  on  the  ground  that  the  purpose  of  their 
intervention  was  lawful  must  be  presumed  to  be  so. 

Among  the  modern  writers  who  have  studied  this 
question,  not  a  few  have  recognized  that  intervention 
for  the  preservation  of  the  balance  of  power  is  justi- 
fiable.30 Probably  those  who  condemn  the  balance  of 
power  are  thinking  solely  of  the  doctrines  of  partition 

29Charles  Dupuis:  Le  Principe  d'equilibre  et  le  Concert 
Europeen  de  la  paix  de  Westphalie  a  1  'acte  d  'Algesiras,  Paris, 
1909.  Formerly,  when  public  opinion  was  not  so  well  instructed, 
the  balance  of  power  was  made  to  justify  the  forcible  annexa- 
tion of  territory,  and  the  partition  of  weaker  states.  Among 
the  older  writers  generally  we  find  a  tendency  to  defend  the 
balance  of  power  without  a  sufficient  consideration  of  the 
means  employed  for  this  end.  "For  a  long  time,"  writes 
Dr.  Lawrence,  "this  doctrine  was  accounted  axiomatic.  It 
had  only  to  be  stated  to  be  accepted.  To  preserve  the  balance 
of  power,  states  kept  up  standing  armies,  entered  into  weari- 
some negotiations  and  waged  incessant  wars.  But  of  late 
years  it  has  fallen  into  disrepute,  and  those  who  still  maintain 
it  set  it  forth  in  a  greatly  modified  form.  They  are  content 
to  argue  that  civilized  states  have  duties  to  perform  to  the 
great  society  of  which  they  are  all  members,  and  that  they 
should  act  in  concert  against  any  aggressive  member  of  it 
whose  unsocial  conduct  endangers  the  welfare  of  the  whole. 
It  is  possible,"  he  adds,  "to  accept  this  doctrine  and  yet 
hold  that  the  theory  of  a  balance  of  power  is  untenable." 
(T.  J.  Lawrence:  Principles,  2  ed.,  §  85,  p.  126.)  It  is  in- 
teresting to  see  how  much  this  statement  has  been  modified 
in  the  fourth  edition  (1910,  §  67,  p.  133).  In  this  revision, 
Lawrence  justifies  the  action  above  described  on  the  ground 
of  self-preservation  and  preservation  of  society. 

30Nassau  Senior  has  given  us  a  careful  study  of  interven- 
tion for  the  maintenance  of  the  balance  of  power,  based  upon 
the  practice  of  the  European  States.  He  reaches  a  favorable 
conclusion,  and  declares  that  "this  right  of  intervention"  is 


424  NON-INTERFERENCE 

and  the  status  quo,  which  cannot,  as  we  have  seen,  be 
defended.31 


"a  privilege  of  the  weak  against  the  strong,"  and  considers 
that ' '  the  circumstances  which  give  rise ' '  to  this  form  of  inter- 
vention "are  tolerably  definite  and  must  always  be  evident." 
(Nassau  Senior:  The  Law  of  Nations,  Edinburgh  Review, 
April,  1843,  p.  334  passim.) 

Professor  Lingelbach  says:  "Whatever  may  be  said  of  the 
doctrine  of  the  balance  power  from  an  ethical  standpoint,  the 
facts  of  history  show  that  it  has  been  a  factor  to  which  the 
theoretical  right  of  independence  has  constantly  yielded.  The 
principle  underlying  the  doctrine  and  practice  has  been,  that 
the  existing  distribution  of  territory  and  power  among  the 
principal  states  at  any  one  time  is  so  essential  to  law  and  order 
in  the  society  of  nations  that  a  disturbance  of  the  status  quo 
constitutes  a  valid  ground  for  intervention."  (American 
Academy  of  Political  and  Social  Science  Annals,  vol.  XVI, 
July,  1900,  p.  10,  cf.  p.  24-5.) 

Professor  Pillet,  in  his  study  of  the  Fundamental  Rights  of 
States,  declares  that  the  "balance  of  power  is  a  condition 
which  all  peoples  have  an  equal  public  interest  in  establishing 
and  maintaining.  Hence  there  exists  a  veritable  right  to  the 
maintenance  of  the  balance  of  power,  and  it  is  one  the  pursuit 
of  which  may  be  supported  by  the  best  reasons,  since  in  this 
manner,  each  one  speaks  only  for  the  common  interests." 
(Translated  from  A.  Pillet:  Fundamental  Rights  of  States, 
in  Revue  generate  du  droit  international  public,  vol.  V,  p.  253.) 

An  Italian  considers  that  the  balance  of  power  is  a  "  . . 
system  which  corresponds  to  the  philosophy  of  law  and  to 
the  concept  of  history."  (Memoria  del  Prof.  Ercole  Vidari: 
Principio  di  intervento,  p.  73-4;  cf.  p.  80.) 

31" Furthermore, "  declares  Professor  Krug,  "the  ostensible 
equilibrium  is  a  thing  so  weak,  fragile,  and  unreliable  that 
the  striving  to  attain  it  has  done  more  to  bring  on  war  than 
to  preserve  peace."  (Translated  from  Krug:  Dikapolitik 
Leipzig,  1824,  p.  373.) 

Hermann  von  Rotteck  does  not  consider  that  the  principle 
of  the  balance  of  power  is  a  legal  basis,  but  declares  that  it 
serves  as  an  "excuse"  for  the  most  unjust  actions,  and  he 
considers  that  the  powers  "often  made  use  of  it  to  satisfy 
their  designs  of  conquest."  (H.  von  Rotteck:  Recht  der 
Einmischung,  1845,  p.  xx-xxi.) 

Westlake  considers  that  nothing  "  . .  .savoring  of  the  prin- 
ciple of  the  balance  of  power  ought  now  to  remain,  except 


BALANCE  OF  POWER  425 

Turning  to  the  practice  of  states,  we  find  that  a 
continuing  and  controlling  majority  of  the  states  of 
international  society  have  acted  upon  the  belief  that 
their  interests  would  be  best  maintained  by  preventing 
anyone  of  their  number  from  suddenly  acquiring  so 
great  an  accession  of  territory  or  resources  as  to  dis- 
turb the  relations  of  other  states,  and  to  endanger  the 
continuance  of  the  independence  of  some  of  them.32 

such  precautions  as  in  particular  cases  may  commend  them- 
selves to  a  cool  head  not  easily  alarmed."  (International 
Law,  vol.  I,  p.  316.) 

Oppenheim  (International  Law,  vol.  I,  p.  193)  declares: 
"  It  is  necessary  to  emphasize  that  the  principle  of  the  balance 
of  power  is  not  a  legal  principle  and  therefore  not  one  of 
international  law,  but  one  of  international  policy." 

Similar  opinions  are  expressed  by  Wheaton  (International 
Law,  Dana's  ed.,  §  63) ;  Bonfils:  Droit  international  public, 
3  ed.,  1901,  §  250,  p.  134) ;  Wilson  and  Tucker  (International 
Law,  2  ed.,  §  39,  p.  76). 

That  Hall  does  not  discuss  this  question  is  perhaps  an 
indication  that  he  did  not  consider  it  a  matter  of  law  such 
as  to  justify  its  inclusion  in  his  treatise. 

32G.  F.  de  Martens,  writing  in  1788  of  an  aggrandizement 
dangerous  to  neighboring  states,  says :  "...  there  are  cases 
when  the  law  of  nature  [justice]  cannot  prohibit  such  states 
from  watching  over  the  maintenance  of  an  equilibrium  amongst 
them  and  from  opposing  before  it  is  too  late  even  with  the 
force  of  arms  either  separately  or  united  either  a  dispropor- 
tionate aggrandizement  irrespective  of  its  lawfulness,  or  the 
weakening  of  another  which  might  serve  as  a  counterpoise." 
(Precis  §  12.) 

Nassau  Senior  writes:  "Interferences,  therefore,  to  pre- 
serve the  balance  of  power,  have  been  confined  to  attempts 
to  prevent  a  sovereign,  already  powerful,  from  incorporating 
conquered  provinces  into  his  territory,  or  increasing  his 
dominions  by  marriage  or  inheritance,  or  exercising  a  dic- 
tatorial influence  over  the  councils  of  an  independent  state." 
(Nassau  Senior:  The  Law  of  Nations,  Edinburgh  Review, 
April,  1843,  p.  329.) 

Phillimore  states  as  one  of  the  grounds  of  intervention, 
which  "the  reason  of  the  thing  and  the  practice  of  nations 
appear  to  have  sanctioned,"  action  taken  "to  preserve  the 
balance  of  power;  that  is,  to  prevent  the  dangerous 


426  NON-INTERFERENCE 

In  practice,  the  states  have  intervened  severally  and 
collectively  to  enforce  respect  for  this  principle. 


aggrandizement  of  any  one  state  by  external  acquisitions." 
(Commentaries,  1  ed.,  1854,  vol.  I,  §  387,  p.  434.) 

Woolsey  seems  to  hold  a  similar  opinion,  and  writes  that 
"it  matters  not  whether  the  actual  ratio  of  power  between 
states  is  in  danger  of  being  disturbed  by  unjust  or  by  just 
means,  provided  only  the  means  are  political,  not  economical 
and  strictly  internal.  If,  for  instance,  the  sovereign  of  a 
powerful  state  should  in  a  just  way  seat  one  of  his  family 
on  the  throne  of  a  neighboring  state,  the  justice  of  the  trans- 
action would  not  be  a  sufficient  protection  against  the  inter- 
ference of  other  powers."  (T.  D.  Woolsey,  1  ed.,  1860,  §  43, 
p.  92,  6  ed.,  §  44,  p.  45.) 

The  treaty  of  Utrecht  declared  that  France  and  Spain 
should  not  both  be  ruled  by  members  of  the  Bourbon  family. 

The  same  question  arose  when  France,  in  1870,  was  not 
willing  that  a  Hohenzollern  should  be  made  King  of  Spain. 

An  alliance  between  two  or  more  states  approaches  and 
shades  into  the  combination  of  states  which,  as  we  have  seen, 
justifies  objection  when  it  endangers  the  equilibrium  of  the 
other  states.  But  in  practice,  alliances  do  not  prove  to  be 
as  close  as  a  real  combination,  and  any  attempt  to  prohibit 
them  would  lead  to  wars  which  the  principle  of  the  balance 
of  power  wishes  to  prevent.  It  is  also  true  that  they  usually 
have  no  great  duration,  unless  they  serve  as  a  necessary 
measure  of  defense.  Occasionally  they  may  serve  the  pur- 
pose of  aggression,  but  the  only  practical  and  effective 
countermeasure  is  an  opposing  defensive  alliance  between 
the  states  who  consider  that  their  security  is  menaced. 

Westlake  is  an  eminent  authority  who  denies  that  interven- 
tion is  justified  to  prevent  accessions  of  territory  except  ' '  for 
the  sake  of  justice,"  by  which  he  evidently  means  to  prevent 
the  conqueror  from  stripping  the  vanquished  of  territory 
beyond  the  limits  of  what  may  be  considered  as  a  reasonable 
satisfaction.  Westlake  significantly  adds:  "Of  course  every 
state  in  turn  which  exacts  a  cession  of  territory  after  a  suc- 
cessful war,  or  seeks  to  profit  by  the  marriage  or  inheritance 
of  its  monarchs,  denies  that  a  third  power  has  any  voice  in 
the  matter.  But  every  state  in  turn  claims  a  voice  in  such 
matters  when  it  deems  it  to  its  interest  to  do  so."  (West- 
lake:  International  Law,  vol.  I,  p.  317,  note.) 

Vattel  propounds  a  curious  theory  that  although  combina- 
tion is  perfectly  legitimate,  it  may  be  considered  as  a  sufficient 


BALANCE  OF  POWER  427 

Why,  it  will  be  asked,  is  this  prohibition  permissible 
when  the  insistance  upon  the  status  quo  is  not!  At 
first  view  it  might  seem  that  the  lawful  acquisition  of 
territory  through  the  succession  of  a  sovereign,  or 
through  the  combination  or  annexation  of  two  states, 
was  no  different  in  principle  from  a  dangerous  prepon- 
derance of  power  which  results  from  gradual  growth 
and  increase  of  wealth  and  resources.  It  would,  how- 
ever, be  futile  to  attempt  to  prevent  increase  of  power 
through  growth.  The  natural  force  of  human  growth, 
which  is  more  fundamental  than  the  regulating  enact- 
ments of  nations,  would  rend  asunder  any  system 
which  attempted  to  prevent  a  state  from  using  the  ad- 
vantages of  its  foresight,  self-denial,  and  wealth  to 
continue  its  state  growth.  But  the  right  of  increase  by 
growth,  which  cannot  be  denied,  may  be  reasonably 
regulated,  so  as  to  prevent  disastrous  consequences  to 
others,  and  the  states  in  practice  have  not  hesitated  to 
subject  the  exercise  of  any  of  the  rights  of  sovereignty 
to  such  reasonable  restrictions  as  they  judged  to  be 
for  the  best  common  interest.33 


evidence  of  designs  of  conquest  when  each  of  the  two  nations 
is  able  alone  to  maintain  itself  in  security.  (Vattel,  Bk.  Ill, 
§  44,  Carnegie  translation,  p.  247.) 

33This  right  of  reasonable  regulation  has  been  more  fully 
considered  above,  §  9. 

Fenelon  points  out  that  all  the  states  compose  a  sort  of 
society  and  commonwealth  [republique  generate] .  He  argues 
that  "to  prevent  a  state  from  becoming  too  powerful  was  not 
to  do  a  wrong,  but  to  protect  oneself  and  one 's  neighbors  from 
subjection,  and  in  a  word  to  work  for  liberty,  tranquillity, 
and  the  public  safety. ' '  Referring  to  the  vast  acquisitions  of 
territory  of  the  House  of  Austria,  Fenelon  continues:  "All 
Europe  was  justified  in  fearing  universal  monarchy  under 
Charles  V,  especially  after  Francis  I  was  defeated  and  made 
prisoner  at  Pavia.  There  can  be  no  doubt  that  a  nation  that 
had  no  direct  cause  of  difference  with  Spain  was  justified 
[en  droit],  for  the  freedom  of  all  [liberte  publique],  in  check- 
ing this  rapid  growth  of  power  which  seemed  on  the  point  of 


428  NON-INTERFERENCE 

Reasonable  regulation  of  the  exercise  of  the  rights 
of  an  independent  state  has  often  taken  the  form  of  a 
restriction  upon  armament  and  fortification.34 

A  special  and  important  form  of  the  restriction  of 
armament  is  the  neutralization  of  a  portion  of  the  ter- 
ritory of  a  state.35  This  application  of  the  principle 
has  been  extended  to  place  an  entire  state  under  the 
regime  of  neutralization.36 

Regulation  has  been  attempted  with  more  or  less 
success  in  regard  to  the  form  of  government,37  and  the 

swallowing  up  everything."  That  individuals  do  not  have 
this  same  right,  Fenelon  considered  was  because  "  . .  there  are 
written  laws  and  magistrates  to  suppress  injustice  and  violence 
between  families  unequal  in  wealth;  but  among  nations  they 
do  not  exist."  (Fenelon:  Works,  vol.  xxii,  p.  306  f.,  quoted 
by  Phillimore,  1854,  vol.  I,  p.  520-525.) 

What  Fenelon  says  covers  the  principle  of  reasonably  re- 
stricting the  exercise  of  the  rights  of  independent  states  for 
the  common  good,  but  the  force  of  these  arguments,  as  such, 
is  impaired  by  the  later  statement  that ' '  offensive  leagues  must 
be  directed  against  violations  of  the  peace,  or  the  detention 
of  territory  of  one  of  the  allies,  or  against  other  acts  of  a 
similar  nature  known  to  have  been  committed."  (Quoted  by 
Phillimore,  1  ed.,  1854,  vol.  I,  p.  522.) 

That  action  for  the  preservation  of  the  balance  of  power 
is  in  the  nature  of  international  police  would  seem  to  be  the 
underlying  thought  of  Travers  Twiss,  when  he  says:  "The 
right  of  confederacy  under  the  natural  right  of  nations  is  at 
the  foundation  of  the  right  of  intervention  in  the  interest 
of  what  has  been  termed,  since  the  Peace  of  Utrecht  (1713), 
the  balance  of  power.'''  (Travers  Twiss:  The  Law  of  Na- 
tions, 1861,  vol.  I,  p.  152.) 

34Phillimore  (Commentaries  on  International  Law,  1  ed., 
1854,  vol.  I,  §  211,  p.  225-6)  recognizes  that  there  is  a  certain 
right  of  restricting  the  liberty  of  armaments  essential  "for 
the  sake  of  the  general  welfare  and  peace  of  the  world." 

"See  Oppenheim :  International  Law,  2  ed.,  Vol.  II,  §  72,  p. 
88;  Westlake:  Vol.  I,  p.  27-30. 

39See  Oppenheim :  International  Law,  2nd  ed.,  Vol.  I,  §  95, 
p.  147;  C.  W.  Wicker:  Neutralization,  1911. 

"Such,  for  example,  as  the  restriction  upon  the  organiza- 
tion of  the  German  Empire,  included  in  the  articles  of  the 
Treaty  of  Westphalia. 


BALANCE  OF  POWER  429 

capacity  to  enter  into  certain  treaties.  From  the  nat- 
ure of  things,  such  provisions  must  be  of  comparatively 
short  duration,  but  they  may  be  of  great  value  in  tiding 
over  difficulties  and  putting  an  end  to  wars.  That  they 
continue  to  form  an  integral  part  of  the  existing  law 
of  nations  is  evidenced  by  the  articles  of  the  recent 
Peace  Treaty  of  Versailles.38 

The  regulatory  restrictions  (presumably  reasonable) 
which  the  states  of  the  world  in  their  executive  capacity 
have  imposed  upon  individual  states  with  the  object 
of  preserving  international  peace  are  usually  found 
in  the  acts  of  the  great  congresses  or  conferences,  such 
as  Westphalia  and  Vienna.  The  powers  of  first  rank 
assembled  in  conference  have  effectively  exercised  the 
executive  authority  of  international  society,  and  the 
treaties  which  they  have  signed  and  proclaimed  for 
the  government  of  all  the  states  nonsignatory,  as  well 
as  signatory,  have"  included  in  express  words  such  re- 
strictions as  they  considered  reasonable  and  necessary 
to  effect  the  purpose  in  view.39 

38See  Edwin  D.  Dickinson:  The  Equality  of  States  in 
International  Law,  1920,  chapter  entitled,  "The  Equality  of 
States  in  the  Peace  of  Paris,"  p.  336-378. 

39The  collective  intervention  of  France  and  Great  Britain 
to  compel  the  Netherlands  to  submit  to  the  separation  of 
Belgium,  1831-32,  has  sometimes  been  classed  as  an  instance 
of  intervention  for  the  maintenance  of  the  balance  of  power. 
It  was  a  good  instance  of  political  action  undertaken  for  the 
maintenance  of  the  political  equilibrium  by  the  liberal  powers, 
but  was  in  violation  of  the  settlement  adopted  at  Vienna, 
since  it  prevented  Holland  from  recovering  territory  there 
assigned  to  her  partly  in  compensation  for  that  which  had 
slipped  from  her  control  during  the  Napoleonic  wars.  As 
Sir  Vernon  Harcourt  (Historicus),  pointing  out  that  the  case 
of  Belgium  was  not  one  of  recognition  but  one  of  intervention, 
remarks :  ' '  Anyone  who  will  be  at  the  trouble  to  examine  the 
history  of  that  transaction,  will  see  that  Belgium  did  not 
pretend,  nor  did  anyone  assert  on  its  behalf,  that  it  had 
achieved  a  de  facto  independence.  On  the  contrary,  it  is 


430  NON-INTBEFERENCE 

These  treaties  are  usually  known  as  treaties  of  guar- 
antee, because  the  signatory  powers  promise  to  inter- 
vene to  enforce  them.40 

International  law,  as  evidenced  by  the  practice  of 
states  is  seen  to  justify  a  power  when  intervening  for 
the  preservation  of  international  peace  and  tranquillity, 
to  prevent  an  acquisition  of  territory  dangerous  to  the 
security  of  the  other  states,  and  to  enforce  respect  for 
such  reasonable  restrictions  as  are  imposed  upon  the 
exercise  of  the  sovereign  rights  of  certain  states.  This 
action,  so  necessary  for  the  enforcement  of  inter- 
national law  and  the  maintenance  of  order,  will  be 
thought  by  many  to  be  no  more  than  mere  abuse  of 
force.  In  consequence  of  this  error,  they  may  some- 
times be  inclined  to  obstruct  justice  by  resisting  the 

perfectly  notorious  that  after  the  battle  of  Louvain,  the  Dutch 
army,  but  for  the  armed  interference  of  France,  would  have 
reoccupied  Brussels.  The  powers  of  Europe,  which  in  1815 
had  assigned  Belgium  to  the  Crown  of  Holland,  thought  them- 
selves entitled  in  1830,  in  the  same  European  interest,  to 
recast  their  own  plan."  (Letters  of  Historicus,  p.  5.)  From 
a  juridical  point  of  view  there  was  a  certain  justification  for 
the  intervention  of  the  western  powers  since  they  put  an  end 
to  an  unnecessary  struggle  and  imposed  upon  the  disputants 
a  settlement  which  was  likely  to  be  more  permanent  in  that 
it  removed  a  source  of  constant  irritation. 

When  the  great  powers  ride  over  the  rights  of  smaller 
powers,  it  is  not  always  easy  to  distinguish  between  proper 
regulation  in  the  interests  of  European  peace  and  unjustifiable 
interference  the  purpose  of  which  is  to  leave  the  great  powers 
freer  in  the  pursuit  of  their  own  political  aims.  The  latter 
is  merely  another  and  milder  instance  of  the  application  of 
the  partition  policy  which  we  have  so  severely  criticized 
above. 

40These  treaties  of  guarantee  are  the  record  of  the  agree- 
ment between  the  signatory  states  to  intervene  in  defense 
of  the  balance  of  power  where  it  is  endangered  in  the  par- 
ticular manner  specified.  The  treaty  does  not  create  a  new 
right  or  ground  for  intervention  but  merely  provides  for  the 
fulfilment  of  existing  rights  by  recourse  to  the  action  necessary 
for  enforcement. 


CONQUEST  431 

powers  that  are  attempting  to  preserve  and  protect  the 
interests  of  all  the  states  by  maintaining  the  conditions 
necessary  to  preserve  peace  and  order.  A  correct  un- 
derstanding of  the  principles  governing  intervention 
for  the  preservation  of  the  balance  of  power  is,  there- 
fore, a  matter  of  great  practical  importance. 

§  18.    CONQUEST 

Conquest  is  the  forcible  seizure,  or  the  enforced  ces- 
sion of  territory  or  rights  from  a  state  without  the 
authorization  of  international  law.41  Otherwise  ex- 


41Bernard  sees  this  essential  idea  that  force  used  to  secure 
an  unjust  advantage  is  conquest.  In  his  discussion  of  inter- 
ference to  enforce  ''one  of  those  reversionary  claims  which 
once  abounded  in  Europe,"  he  says:  "The  forcible  vindica- 
tion of  such  rights,  when  they  fall  into  possession,  is  not 
intervention,  but  conquest."  (Bernard:  Non-intervention, 
1860,  p.  13;  cf.  Hall:  International  Law,  4  ed.,  §  91,  p.  300.) 

Coleman  Phillipson,  in  his  Termination  of  War  and 
Treaties  of  Peace, ' '  eh.  II,  entitled,  ' '  Termination  of  War  by 
Conquest  and  Subjugation,"  uses  the  term  "complete  subju- 
gation ' '  in  place  of  what  we  call  conquest.  For  him  conquest  is 
merely  effective  military  occupation.  He  writes:  "But  in 
the  case  of  subjugation — the  debellatio  of  the  Romans — not 
only  have  the  occupying  forces  acquired  effective  possession 
of  the  territory  concerned,  but  the  adversary  has  been  re- 
duced to  impotence  and  submission,  or  has  been  practically 
annihilated — or,  at  all  events,  all  his  organized  resistance  has 
disappeared — and  the  victorious  Government  has  clearly  mani- 
fested its  intention  to  hold  the  said  territory  permanently 
under  its  dominion. "  (Phillipson:  Termination  of  War  and 
Treaties  of  Peace,  1916,  p.  9,  ch.  II.) 

Hall  (International  Law,  4  ed.,  §  204,  p.  587)  uses  "con- 
quest" as  including  this  firm  possession.  It  may  well  happeii 
that  a  state  acquire  territory  by  conquest  or  otherwise,  with- 
out completely  subjugating  it,  as  when  Japan  acquired 
Formosa,  inhabited  in  part  by  unsubjugated  tribes.  Annex- 
ation we  take  to  be  the  extension  of  sovereignty  over  new 
possessions  accompanied  by  the  indication  of  such  intention. 
Consequently  we  reject  as  confusing  and  inaccurate  Phillip- 
son's  "three  steps, — conquest,  subjugation,  and  annexation." 


432  NON-INTERFERENCE 


Other  writers  confuse  the  annexation  of  territory  with 
conquest.  Halleck,  although  he  states  that  "hostilities  were 
commenced  by  the  Mexicans,  and  the  Americans  had  suffered 
innumerable  wrongs  before  the  commencement  of  the  war," 
considers  that  the  war  of  the  United  States  against  Mexico 
was  a  war  of  conquest.  The  reason  he  gives  is  that  the 
United  States  considered  that  indemnity  for  the  past  and 
security  for  the  future  could  only  be  secured  by  retaining  a 
portion  of  Mexico's  territory.  Halleck  adds:  "In  its  essen- 
tial features  it  was,  therefore,  a  war  of  conquest. ' '  ( Halleck : 
International  Law,  1861,  p.  332,  ch.  XIV,  §  8.) 

Reasonable  indemnity  and  security  is  not  conquest,  but 
would  of  course  become  so  if  they  were  simply  made  the 
pretext  for  an  unjust  acquisition  of  territory.  Sir  Robert 
Morier,  in  a  letter  of  January  5,  1870,  discussing  Germany's 
conduct  wrote: 

"But  I  maintain  we  have  no  right  when  we  sit  in  judg- 
ment on  a  contemporary  political  event  to  appeal  to  Utopian 
laws,  or  to  apply  a  code  which,  although  it  may  have  been 
already  elaborated  and  accepted  by  a  select  few,  has  not  yet 
had  time  to  become  the  common  law  of  mankind.  It  is  absurd 
to  maintain  that  territorial  cessions,  as  such,  have  been 
definitely  erased  out  of  this  international  common  law.  Wars 
undertaken  for  the  purpose  of  conquest  undoubtedly  have, 
and  it  is  because  the  war  of  1870  was  really  a  war  of  this 
kind,  and  was  felt  to  be  but  a  link  in  an  ascending  series  of 
such  wars  waged  by  France,  that  it  raised  such  universal  in- 
dignation amongst  all  right-minded  people.  A  cession  of 
territory  demanded  by  the  aggrieved  party  as  a  penalty  to  be 
paid  by  the  unsuccessful  aggressor,  and  on  proof  given  that 
such  cession  is  necessary  to  guard  against  a  renewal  of  aggres- 
sion, is  not  only  not  erased  from  the  modern  international 
code,  but  was  solemnly  placed  on  record  in  the  treaty  of  peace 
with  Russia  in  1856.  There  is,  moreover,  a  striking  parallel 
between  the  principles  which  ruled  our  action  on  that  occasion, 
and  that  which  rules  the  action  of  Germany  in  demanding 
Alsace.  In  both  cases  the  desideratum  was,  and  is,  the  re- 
moval of  the  aggressor  from  the  banks  of  a  river  which  had 
before  constituted  his  frontier,  and  the  placing  of  the 
aggressed  in  full  possession  of  both  banks  of  the  river." 
(Memoirs  and  Letters  of  Sir  Robert  Morier,  1911,  vol.  II, 
p.  223.) 

When  a  powerful  state  has  a  weaker  at  its  mercy,  it  may 
not  be  necessary  actually  to  employ  force  in  order  to  secure 
the  coveted  territory,  and  even  if  the  acquisition  of  the 


CONQUEST  433 

pressed,  conquest  is  a  violation  of  international  law.42 
History  furnishes  many  examples  of  conquest,  and 


territory  wrested  from  the  possessor  is  confirmed  by  a  formal 
treaty,  the  act  remains  none  the  less  one  of  conquest  when- 
ever force  is  relied  upon  unjustly  to  constrain  the  owner  to 
make  the  cession. 

*2Every  system  of  law  has  for  its  main  purpose  to  guarantee 
the  peaceful  enjoyment  of  rights.  It  cannot,  therefore,  justify 
conquest,  but  we  must  remember  that  the  law  is  not  law  unless 
it  is  enforced  sufficiently  to  make  it  respectable  and  valuable 
to  those  who  observe  it  and  help  to  support  it.  In  its  earlier 
stages  law  could  not  hope  to  be  respected  if  it  were  to  rigidly 
condemn  conquest,  for  the  instinct  of  conquest  is  too  deep  in 
the  human  heart.  Even  now,  international  law  cannot  hope 
to  do  more  than  to  repress  the  worst  evils  of  unlimited  recourse 
to  force.  The  old  rule  was  that  conquest  was  lawful  when 
made  in  consequence  of  a  just  war. 

As  an  illustration  of  the  prevalence  of  this  doctrine  we  quote 
the  following  portion  of  Professor  Callahan's  summary  of 
Secretary  of  State  Everett's  note  of  December  1,  1852,  rela- 
tive to  Cuba,  addressed  to  the  British  representative :  ' '  The 
United  States  was  not  seizing  islands  in  the  Mediterranean, 
and  she  would  not  take  Cuba  by  force  except  in  a  just  war. 
She  had  no  desire  to  be  a  disgrace  to  civilization. ' '  ( See  Calla- 
han:  Cuba  and  International  Relations,  1899,  p.  234-5.) 

Franciscus  Victoria  of  Salamanca  in  the  sixteenth  century, 
declared :  ' '  Extension  of  empire  is  not  a  just  cause  of  war. ' ' 
(Victoria's  Relationes,  De  Indis  et  de  Jvre  Belli  Relectiones, 
Carnegie  translation,  p.  170.  The  first  edition  of  the  Relec- 
tiones was  printed  at  Lyons,  1557.) 

The  illegality  of  conquest  is  recognized  by  many  other 
authorities.  Vattel,  referring  to  "purposes  which  may  fur- 
nish lawful  reasons  or  unjust  pretexts,  but  which  are  at  least 
capable  of  being  construed  as  just,"  observes:  "For  this 
reason  I  do  not  offer  conquest  or  the  desire  to  usurp  the 
property  of  another  as  one  of  the  purposes  of  offensive  war; 
such  a  purpose,  lacking  even  the  semblance  of  right,  is  not 
the  object  of  formal  war,  but  of  brigandage,  of  which  we  shall 
speak  in  its  proper  place."  (Vattel:  The  Law  of  Nations, 
1758,  Bk.  Ill,  ch.  1,  Carnegie  translation,  p.  236.) 

John  Stuart  Mill  considers  it  an  "affront  to  the  reader" 
to  discuss  war  of  conquest  even  as  a  result  of  lawful  war.  (A 
Few  Words  on  Non-intervention,  Frazer's  Magazine,  May, 
1859,  p.  773;  Cf.  Grotius,  Bk.  II,  ch.  I,  I,  §§  3-4.) 


434  NON-INTERFERENCE 

certain  writers  like  Bemardi  and  Steinmetz  have  un- 
blushingly  advocated  it,43  but  no  modern  government, 


The  illegality  of  conquest  is  best  shown  by  the  practice  of 
states,  which  furnishes  many  instances  of  counter-intervention. 
It  is  true  that  the  powers  do  not  come  to  the  support  of  the 
state  unjustly  attacked  at  the  moment  when  war  breaks  out. 
The  aggressor  may  be  trusted  to  choose  the  moment  so  that 
they  will  not  find  this  convenient.  Occasionally  the  powers 
intervene  to  prevent  an  attack.  They  did  so  in  1875  to 
check  Bismarck's  onslaught  on  France,  but  usually  they  wait 
for  an  opportune  moment  when  the  warring  states  are  ex- 
hausted by  the  struggle.  England  intervened  diplomatically, 
for  example,  in  1871  to  prevent  Prussia  from  exacting  as 
great  a  pecuniary  indemnity  as  she  purposed.  This  is  not 
a  perfect  sanction;  it  is,  however,  the  most  effective  which 
international  law  has  yet  been  able  to  invent. 

"When  a  state  great  and  powerful  in  the  course  of  its 
development  has  for  its  expansion  a  real  need  for  the  terri- 
tory of  a  small  state,  it  does  not  seem  to  me  that  the  conquest 
of  the  latter  can  be  contrary  to  the  interests  of  humanity." 
(Steinmetz:  Evolution  Collective,  p.  245.)  In  a  contrary 
sense,  see  Phillipson :  Termination  of  War,  p.  29-30. 

Professor  Amos  S.  Hershey  writes:  "Several  leading  au- 
thorities refuse  to  recognize  conquest  as  a  legal  mode  of 
acquiring  territory,  but  this  view  is  in  contradiction  with  the 
facts  of  historical  development  and  international  practice. 
Whatever  may  be  said  as  to  the  desirability  of  abolishing  the 
so-called  right  of  conquest,  and  however  desirable  that  the 
validity  of  titles  based  upon  fraud  and  violence  be  denied, 
we  cannot  substitute  our  wishes  for  realities  or  create  rules 
of  international  law  by  ignoring  the  practice  of  nations." 
(Hershey:  Essentials  of  International  Law,  p.  180-181.) 

Rivier  expresses  similar  views,  and  remarks,  "Conquest 
justifies  itself  by  its  existence,  like  war,  of  which  it  is  a  natural 
consequence ;  and  I  do  not  believe,  notwithstanding  the  noble 
and  touching  words  which  are  spoken  and  printed,  that  any 
statesman  directing  important  international  affairs  seriously 
thinks  of  abolishing  it."  (Translated  from  Rivier,  vol.  I, 
1896,  p.  181.) 

Coleman  Phillipson  (Termination  of  War,  p.  19)  falls  into 
the  same  error.  The  writers  who  express  this  opinion  have 
failed  to  understand  the  difference  between  the  acceptance 
of  de  facto  possession,  whatever  its  origin,  as  a  basis  for  recog- 
nition, and  the  acceptance  of  the  legality  of  conquest  per  se. 


CONQUEST  435 

however  strong  or  however  ill-intentioned,  has  dared 
to  proclaim  a  war  of  conquest  or  to  justify  conquest  as 
such.  Whenever  conquest  was  the  motive,  some  other 
pretext  has  been  alleged  to  cover  it.44 

Lord  Palmerston,  in  a  letter  to  Lord  Clarendon  in 
1853,  gives  us  the  following  remarkable  description  of 
the  older  methods  of  conquest  as  employed  by  the  Rus- 
sian Government:  "The  policy  and  practice  of  the 
Eussian  Government  has  always  been  to  push  forward 


"Almost  any  of  the  justifiable  grounds  for  intervention 
may  serve  as  a  pretext  for  unjustifiable  conquest.  The  reason 
for  this  lies  in  the  wide  measure  of  discretion  which  every 
state  enjoys  in  deciding  when  it  has  reason  to  employ  force. 
In  a  preceding  note,  we  have  referred  to  instances  of  conquest 
which  result  from  the  attempt  to  enforce  reversionary  claims 
to  succession.  (See  Bernard:  Non-intervention,  1860,  p.  13.) 

Exaggerated  demands  for  indemnity  is  another  pretext,  and 
humanitarian  intervention  is  so  good  a  cover  for  illicit  designs 
of  conquest,  that  in  the  eyes  of  some  authorities  it  taints  the 
whole  institution.  They  would,  in  consequence,  cancel 
humanitarian  intervention  from  the  list  of  justifiable  grounds 
of  intervention. 

Another  disguised  form  of  conquest  is  a  lease  for  a  long 
term  of  years,  with  so  complete  an  exercise  of  authority  as 
to  constitute  a  virtual  annexation.  (  See  Westlake  :  Interna- 
tional Law,  vol.  I,  p.  135-6.)  This  form  of  annexation  is 
particularly  advantageous  because  in  the  event  of  other  na- 
tions raising  too  strong  an  objection,  the  lease  can  be  canceled 
without  so  serious  a  hurt  to  national  susceptibilities  as  would 
result  from  the  retrocession  of  territory  formally  annexed. 

A  particularly  dangerous  and  popular  pretext  for  conquest 
is  the  doctrine  of  nationality  or  self-determination,  which 
claims  a  right  for  the  people  of  similar  race,  language,  etc., 
to  unite  under  the  same  national  authority. 

Bernard  asks  :  '  '  Is  it  lawful  to  invade  and  conquer,  without 
a  quarrel,  the  territories  of  a  friendly  sovereign,  provided  you 
are  able  to  affirm  that  you  believe  the  conquest  will  be  agree- 
able to  his  subjects,  and  can  obtain  a  vote  in  your  favor  when 
it  is  virtually  complete?  It  seems  to  be  an  opinion  now  in 
fashion  that  nationality  in  such  a  case  is  a  sufficient  plea.  I 
own  that  I  can  hardly  imagine  a  doctrine  more  subversive 
of  morality,  or  more  dangerous  to  freedom.  "  (Bernard  :  Non- 
intervention, 1860,  p.  26.) 


436  NON-INTERFERENCE 

its  encroachments  as  fast  and  as  far  as  the  apathy  or 
want  of  firmness  of  other  Governments  would  allow  it 
to  go,  but  always  to  stop  and  retire  when  it  was  met 
with  decided  resistance,  and  then  to.  wait  for  the  next 
favorable  opportunity  to  make  another  spring  on  its 
intended  victim.  In  furtherance  of  this  policy,  the 
Russian  Government  has  always  had  two  strings  to 
its  bow — moderate  language  and  disinterested  profes- 
sions at  Petersburg  and  at  London ;  active  aggression 
by  its  agents  on  the  scene  of  operations.  If  the  aggres- 
sions succeed  locally,  the  Petersburg  Government 
adopts  them  as  a  'fait  accompli'  which  it  did  not  in- 
tend, but  cannot,  in  honor,  recede  from.  If  the  local 
agents  fail,  they  are  disavowed  and  recalled,  and  the 
language  previously  held  is  appealed  to  as  a  proof 
that  the  agents  have  overstepped  their  instructions. 
This  was  exemplified  in  the  Treaty  of  Unkiar-Skelessi, 
and  in  the  exploits  of  Simonivitch  and  Vikovitch  in 
Persia.  Orloff  succeeded  in  extorting  the  Treaty  of 
Unkiar-Skelessi  from  the  Turks,  and  it  was  represent- 
ed as  a  sudden  thought,  suggested  by  the  circumstances 
of  the  time  and  place,  and  not  the  result  of  any  previous 
instructions;  but  having  been  done,  it  could  not  be 
undone.  On  the  other  hand,  Simonivitch  and  Vikovitch 
failed  in  getting  possession  of  Herat,  in  consequence 
of  our  vigorous  measures  of  resistance;  and  as  they 
failed,  and  when  they  had  failed,  they  were  disavowed 
and  recalled,  and  the  language!  previously  held  at 
Petersburg  was  appealed  to  as  a  proof  of  the  sincerity 
of  the  disavowal,  although  no  human  being  with  two 
ideas  in  his  head  could  for  a  moment  doubt  that  they 
had  acted  under  specific  instructions."  (Ashley:  Life 
of  Lord  Palmerston,  1876,  vol.  II,  p.  25-26.) 

In  this  polite  age,  conquest  is  usually  effected  under 
the  guise  of  an  indemnity  for  a  war  proclaimed  to  have 
been  undertaken  in  defense  of  international  law  rights. 


CONQUEST  437 

In  some  instances  the  cession  of  territory  is  exacted  as 
security  against  the  recurrence  of  the  offenses  alleged 
to  have  justified  recourse  to  arms. 

It  is  not  necessary  to  enter  into  any  further  discus- 
sion of  conquest  as  a  justifiable  purpose  of  war,  but 
the  question  as  to  the  legality  of  conquest  has  been 
much  confused  because  of  the  failure  to  perceive  the 
distinction  between  the  illegality  of  conquest  and  the 
legality  of  the  consequences  which  often  result  di- 
rectly from  a  conquest.  It  is  of  primary  importance 
to  international  society  that  every  territory  should 
have  a  responsible  master  able  to  police  it  for  the  main- 
tenance of  peace  and  for  the  fulfilment  of  international 
law.  It  is  not  yet  practicable  to  hold  the  title  to  im- 
portant territory  in  abeyance  because  it  has  been  il- 
legally acquired.45  For  the  same  reason  that  a  certain 

45The  illegality  of  conquest  permits  any  and  all  states  to 
intervene  with  force  in  as  far  as  is  necessary  to  counteract 
it.  This  is  no  interference,  but  a  true  example  of  the  vindica- 
tion of  the  law  such  as  we  discussed  above  under  §  7.  (See 
Westlake,  vol.  I,  p.  317.) 

But  if  the  circumstances  are  such  that  none  of  the  powers 
avails  itself  of  the  presumption  justifying  counter- 
intervention  to  defend  the  state  which  is  attacked,  practical 
considerations  require  that  the  results  of  the  conflict  be  ac- 
cepted as  a  fact  and  the  right  of  counter-intervention,  not 
having  been  exercised  at  the  time,  must  be  considered  to 
have  lapsed.  Such  a  rule  shocks  our  sense  of  justice,  but  is 
necessary  to  the  preservation  of  the  society  of  states,  without 
which  all  justice  would  disappear.  When  the  nations  in  their 
wisdom  shall  have  established  a  more  perfect  union,  it  may  be 
possible  to  prevent  all  aggression  and  compel  the  despoiler 
to  disgorge.  Under  present  conditions,  the  security  of  inter- 
national society  would  be  seriously  jeopardized  and  its  re- 
sources uselessly  dissipated  by  any  attempt  at  a  delayed 
rectification  of  wrongs  which  the  nations  had  not  the  will  or 
the  power  to  prevent  at  the  time  of  their  commission. 

This  is  the  reason  for  the  adoption  of  the  principle  of  uti 
possidetis  when  wars  are  terminated  without  a  treaty  of  peace. 
(Cf.  Phillipson:  Termination  of  War,  p.  7;  cf.  Westlake, 
vol.  I,  p.  65.) 


438  NON-INTERFERENCE 

period  of  adverse  possession  gives  title  to  land  in  our 
common  law,  any  territory  acquired  by  conquest  is 
presumed  legally  to  belong  to  the  conqueror  as  soon  as 
forcible  opposition  to  the  conquest  ceases  and  the  other 
states  refrain  from  publicly  impugning  the  title.46 

There  is  evidently  a  great  field  for  the  further  grad- 
ual restriction  of  the  more  injurious  forms  of  conquest. 
This  progress  must  be  based  upon  a  clearer  definition 
and  understanding  of  the  nature  and  function  of  the 
derivative  forms  of  conquest.  We  may  expect  the 
powers  gradually  to  become  nicer  in  regard  to  the 
recognition  of  title  resting  merely  upon  firm  possession 
after  conquest.47  In  the  course  of  time  we  may  also 
expect  that  conquest  will  be  defined  more  carefully  and 
rigidly,  so  as  to  place  under  the  ban  certain  disguised 
and  more  refined  methods  now  used  to  obtain  by  force 
what  belongs  to  another. 

§  19.    TREATY  RIGHTS 

It  is  often  erroneously  stated  that  a  right  of  inter- 
vention arises  from  a  treaty.  This  is  a  misunderstand- 


46Cf.  Hall,  4  ed.,  p.  588,  §  204.  It  is  the  custom  of  many 
writers  on  international  law  to  class  those  cases  where  the 
acquisition  of  territory  has  been  confirmed  by  treaty  as  or- 
dinary cessions  of  territory,  without  distinction  as  to  whether 
they  are  based  upon  conquest  or  not.  Perhaps  a  sense  of 
international  decency  has  exercised  some  influence  in  this 
matter,  since  the  territorial  growth  of  all  the  great  states  is 
marked  by  acts  of  conquest,  even  though  the  decent  clothing 
of  a  treaty  has  been  thrown  about  them.  A  treaty  has  gen- 
erally terminated  the  violent  opposition  to  a  conquest,  but  it 
cannot  transform  what  was  really  a  conquest  into  an  instance 
of  voluntary  cession.  The  treaty  does,  however,  evidence  the 
fact  of  the  firm  possession. 

47  It  is  interesting  to  examine  Secretary  of  State  Blaine  's 
plan  proposed  before  the  International  American  Confer- 
ence (1889-90)  for  declaring  conquest  in  America  illegal. 
(See  Moore:  Digest,  Vol.  I,  p.  292-3.) 


TREATY   RIGHTS  439 

ing.  Treaties  do  not  create  rights,  they  record  them.4Ta 
The  procedure  of  international  law  allows  each  state 
a  very  wide  discretion  in  judging  how  far  the  circum- 
stances will  permit  it  to  go  in  the  fulfilment  of  its  obli- 
gations to  enforce  international  law,  and  this  uncer- 
tainty reacts  on  other  states,  who  are  deeply  concerned 
in  knowing  how  the  state  will  interpret  its  obligations 
and  what  policies  it  will  pursue.  To  obtain  this  assur- 
ance, states  enter  into  agreements  recorded  in  treaties 
that  they  will  or  will  not  act  in  a  particular  manner.48 
Evidently  such  an  agreement  must  look  to  the  perform- 
ance of  acts  which  are  in  themselves  legal  under  inter- 
national law.  Otherwise  to  fulfil  the  treaty  would  be 
to  violate  international  law,  and  this  no  nation  may 
justly  promise  or  require.  Treaties  which  record  an 
agreement  to  interfere  in  the  internal  affairs  of  the 
signatory  or  of  other  sovereign  states  are  without  any 
standing  in  international  law,  and  cannot  be  made  to 
justify  the  interference  which  they  contemplate.  No 
state  can  retain  its  independent  status  if  it  agrees  to 
transfer  to  another  the  liberty  to  interfere  for  the  pres- 
ervation of  a  particular  form  of  government.49  Such 

47a' '  Treaties  are  unable  to  create  anything,  they  simply  show 
what  the  powers  consider  and  recognize  as  the  law  based  on 
custom."  (Translated  from  J.  de  Louter:  Le  droit  inter- 
national public  positif,  1920,  Vol.  I,  p.  54.) 

"A  guarantee  secures  a  right,  but  never  gives  it  originally 
its  force."  (Translated  from  G.  Quabbe:  Die  Volkerrecht- 
liche  Garantie,  Breslau,  1911,  p.  13;  cf.  K.  G.  Idman:  Le 
Traite  de  grantie  en  droit  international,  Helsingfors,  1913,  p. 
81-2.) 

48We  may  give  as  an  example  the  agreement  of  Louis  XIV 
not  to  give  any  further  asylum  to  the  Stuart  Pretenders  (Sir 
George  Cornewall  Lewis:  On  Foreign  Jurisdiction  and  the 
Extradition  of  Criminals,  p.  68.) 

"Mountague  Bernard,  discussing  the  alleged  right  to  inter- 
vene "when  a  right  to  interfere  is  secured  by  contract,  as  it 
may  be  when  the  intervening  state  has  guaranteed  the  main- 
tenance of  a  particular  dynasty  or  of  particular  institutions, 


440  NON-INTERFERENCE 

an  agreement  would  be  equivalent  to  a  signing  away  of 
international  sovereignty,  and  would,  if  duly  entered 

or  by  virtue  of  a  protectorate  or  a  federal  pact"  (Bernard: 
Non-intervention,  1860,  p.  11),  considered  that  this  excep- 
tion to  the  general  rule  of  non-intervention  [non-interference] 
"may  be  disposed  of  in  a  few  words,"  which  he  proceeds  to 
supply:   "A  guarantee  of  a  throne  to  a  family,  or  of  a  par- 
ticular form  of  government  to  a  people, — such  a  guarantee, 
for  instance,  as  that  of  the  Protestant  Succession  in  England, 
of  the  power  of  the  Stadtholders  in  Holland,  of  the  Braganza 
dynasty  in  Portugal,  of  monarchical  institutions  in  Greece, — 
does  not,  unless  by  express  words  or  clear  implication,  extend 
to  internal  troubles;    and,  even  when  it  does,  gives  to  the 
state  undertaking  it  no  right  to  interfere,  unless  called  upon 
to  do  so.     Of  a  general  agreement  creating  such  a  right  whilst 
the  state  which  yields  it  remains  nominally  independent,  I 
do  not  hesitate  to  say  that  it  is  one  into  which  no  government 
is  authorized  to  enter.     No  government  is  authorized  to  de- 
grade by  compact  the  country  it  rules  into  a  condition  of 
real  vassalage,  whilst  retaining  the  name  and  responsibilities 
of  independence.     'It  is  impossible  to  imagine,'  wrote  Lord 
Aberdeen  in  1828  to  the  Brazilian  Envoy,  who  asked  assist- 
ance against   Don  Miguel  on  the  strength   of   our   ancient 
treaties   with   Portugal, — 'it   is   impossible   to   imagine   that 
any  independent  state  could  ever  intend  thus  to  commit  the 
control  and  direction  of  its  internal  affairs  to  the  hands  of 
another  power.'     The  separate  and  secret  article  annexed  to 
the  Treaty  of  the  12th  of  June,  1815,  between  the  Emperor 
of  Austria  and  the  King  of  the  Two  Sicilies,  whereby  the 
latter  promised  that  he  would  admit,  in  re-establishing  the 
government  of  his  kingdom,  no  change  incompatible  either 
with    old    monarchical    institutions   or   with    the    principles 
adopted  in  the  Austro-Italian  provinces,   was  defended  in 
1821  by  Lord  Liverpool  as  'in  perfect  consonance  with  the 
spirit  of  ancient  treaties,  founded  on  the  clearest  principles 
of  international  law,  and  which  had  formed  part  of  it  from 
the  beginning  of  time. '     I  venture  to  affirm,  on  the  contrary, 
that  it  was  a  vicious  engagement,  out  of  which  no  rights  could 
arise.     The  question  is  less  simple,  and  the  principle  more 
feebly  applies   (if  it  applies  at  all),  where,  as  in  the  case 
already  mentioned  of  a  'protected'  state,  or  in  that  of  a 
member  of  a  federal  commonwealth  like  the  German,  there 
is  a  partial  loss  or  surrender  of  independence.     The  Austrian 
intervention   in  Hesse   Cassel  in   1850   derived   some   color, 
though  no  justification,  from  the  fact  that,  for  the  sake  of 


TREATY   RIGHTS  441 

into  and  acquiesced  in  by  all  the  interested  states, 
amount  to  the  establishment  of  a  supervisory  control 

a  perpetual  defensive  alliance  and  from  the  sense  of  a  com- 
mon nationality,  the  minor  German  States  have  substantially 
submitted  themselves  to  an  indefinite,  and  therefore  mis- 
chievous, control  by  confederates  more  powerful  than  them- 
selves." (Bernard:  Non-intervention,  1860,  p.  14-15;  cf. 
Hall,  1  ed.,  1880,  §  93,  p.  248;  ibid,  p.  306.) 

Twiss,  who  devotes  a  considerable  space  to  the  discussion 
of  treaties  guaranteeing  a  particular  form  of  government, 
emphatically  declares  that  "a  convention  of  guarantee  nude 
and  absolute  does  not  apply  to  the  case  of  political  changes." 
(Travers  Twiss,  Law  of  Nations,  vol.  I,  1861,  §  231,  p.  367- 
379.) 

Halleck  remarks:  "But,  in  treaties  of  equal  alliance,  be- 
tween independent  and  sovereign  states,  will  a  stipulation  of 
mediation  or  guaranty  justify  generally  the  interference  of 
one  state  in  the  internal  affairs  of  another,  contrary  to  the 
wishes  of  the  latter  ?  If  the  interference  is  in  itself  unlawful, 
can  any  previously  existing  stipulation  make  it  lawful?  We 
think  not;  for  the  reason  that  a  contract  against  public 
morals  has  no  binding  force,  and  there  is  more  merit  in  its 
breach  than  in  its  fulfilment.  (Wheaton,  Elem.  Int.  Law, 
pt.  2,  ch.  1,  §§  13-16;  Kluber,  Droit  des  Gens,  pt.  2,  tit.  1, 
ch.  2,  §  48;  Phillimore,  On  Int.  Law,  vol.  1,  §  393;  Poison, 
Law  of  Nations,  sec.  5 ;  Bello  Derecho  International,  pt. 
1,  cap.  1,  §  7.)"  (Halleck,  International  Law,  ch.  IV,  §  8, 
p.  86.) 

Creasy  quotes  this  passage  from  Halleck  with  approval 
(First  Platform,  §  320,  p.  306-7.) 

Theodore  D.  Woolsey,  in  the  fifth  and  last  edition  of  his 
Introduction  to  International  Law,  which  he  revised  himself, 
adds  the  following  explanatory  note:  "If  the  principles  of 
intervention  cannot  stand,  treaties  of  guaranty,  which  con- 
template such  intervention,  must  be  condemned  also;  for 
they  have  in  view  a  resistance,  at  some  future  time,  to  the 
endeavors  of  third  parties  to  conquer  or  in  some  way  control 
the  guaranteed  states  in  question.  An  agreement,  if  it  in- 
volve an  unlawful  act,  or  the  prevention  of  lawful  acts  on 
the  part  of  others,  is  plainly  unlawful."  (International 
Law,  5  ed.,  1878,  §  43,  p.  44.) 

Hall  (International  Law,  1  ed.,  1880,  p.  248,  §  93,  4  ed., 
p.  305-6)  expresses  the  same  idea. 

But  some  of  the  most  respectable  of  the  older  writers  fall 
into  the  error  of  supporting  a  contrary  view.  See  F.  de 


442  NON-INTERFERENCE 

or  protectorate.50  A  change  of  such  serious  import 
cannot  be  presumed  to  be  intended,  and  any  govern- 

Martens,  Volkerrecht  [Bergohm's  translation],  §  76;  Kliiber, 
Droit  des  gens,  1  ed.,  1819,  §  51. 

Even  so  late  as  1910,  we  find  in  T.  J.  Lawrence's  fourth 
edition  of  his  valuable  Principles  of  International  Law  (§  64, 
p.  126)  this  persistent  error.  He  writes:  "If  a  state  has 
accepted  a  guarantee  of  any  of  its  possessions,  or  of  its 
reigning  family,  or  of  a  special  form  of  government,  it  suffers 
no  legal  wrong  when  the  guaranteeing  state  intervenes  in 
pursuance  of  the  stipulations  entered  into  between  them, 
though  it  may  suffer  moral  wrong  when  those  stipulations 
are  in  restraint  of  functions  it  ought  to  exercise  freely,  for 
example,  the  choice  of  its  rulers."  (T.  J.  Lawrence:  Prin- 
ciples of  International  Law,  4  ed.,  1910,  §  64,  p.  126.) 

Professor  Lingelbach  criticises  Lawrence's  view  that  inter- 
vention when  based  upon  a  treaty  is  always  legal.  (See 
W.  E.  Lingelbach:  Intervention  in  Europe,  Annals  of  the 
Academy  of  Political  and  Social  Science,  vol.  XVI,  July, 
1900,  p.  24.) 

Among  the  writers  who  deny  the  right  of  interference  in 
constitutional  affairs  even  when  based  upon  a  treaty  are :  Rossi 
(Archives  de  Dr&it,  1837,  p.  375) ;  Rotteck  (Einmischung, 
1845,  p.  26) ;  Milovanowitch  (Des  traites  de  garantie  en  droit 
international,  1888,  p.  38-39)  ;  Quabbe  (Die  Volkerrechtliche 
Garantie,  1911,  p.  13) ;  Louter  (Droit  international  public 
positif,  1920,  Vol.  I,  p.  519.) 

Other  older  authorities  who  recognize  a  treaty  as  giving  a 
right  to  intervene  are:  Giinther  (Volkerrecht,  Vol.  I,  1787, 
p.  287-8) ;  Kamptz  (Volkerrechtiche  Erorterung,  1821,  p. 
32-5) ;  Krug  (Dikapolitik,  1824,  p.  329-30.) 

50Article  III  of  the  treaty  of  May  22,  1903,  between  the 
United  States  and  Cuba  provides: 

"The  government  of  Cuba  consents  that  the  United  States 
may  exercise  the  right  to  intervene  for  the  preservation  of 
Cuban  independence,  the  maintenance  of  a  government  ade- 
quate for  the  protection  of  life,  property,  and  individual 
liberty,  and  for  discharging  the  obligations  with  respect  to 
Cuba  imposed  by  the  Treaty  of  Paris  on  the  United  States, 
now  to  be  assumed  and  undertaken  by  the  Government  of 
Cuba."  (Malloy:  Treaties,  vol.  I,  p.  364.) 

This  permission  to  the  United  States  "to  exercise  the  right 
to  intervene"  merely  recognizes  the  supervisory  capacity  of 
the  United  States.  It  is  therefore  perfectly  legitimate,  but 


TREATY   EIGHTS  443 

ment  which  should  promise  to  another  such  liberty  of 
interference  would  be  acting  ultra  vires,  that  is,  beyond 
its  powers,  unless  it  were  shown  that  the  nation  as  a 
whole  had,  after  due  consideration,  intended  to  accept 
the  inferior  status  of  a  protected  state. 

There  are,  however,  instances  in  which  treaties  rela- 
tive to  interference  in  the  internal  affairs  of  fully  sov- 
ereign states  are  in  accord  with  international  law,  and 
must  be  considered  as  valid.  We  refer  to  stipulations 
which  evidence  the  agreement  of  the  concert  of  powers 
to  restrict  the  exercise  of  rights  of  sovereignty  for  the 
defense  of  the  interests  of  international  society,  as,  for 
example,  when  the  Great  Powers  excluded  Napoleon 
from  the  throne  of  France.51 


at  the  same  time  it  indicates  the  partially  dependent  status 
of  Cuba. 

President  Wilson's  administration,  during  the  winter  of 
1914-15,  sounded  the  representatives  of  South  American 
countries  relative  to  the  conclusion  of  a  treaty,  one  of  the 
articles  of  which,  as  published  in  the  press,  provided  for 
' '  the  mutual  guarantee  of  territorial  integrity  and  of  political 
independence  under  republican  forms  of  government." 
(Moore:  Principles  of  American  Diplomacy,  p.  406-8.) 

Of  course,  it  is  hardly  to  be  expected  that  the  states  of 
South  America  would  intervene  in  the  internal  affairs  of 
the  United  States  for  any  purpose  whatsoever,  and  such  a 
treaty,  although  equal  or  mutual  in  form,  would  amount  to 
a  guaranty  accorded  by  the  United  States  to  the  lesser  con- 
tracting powers,  and  as  such  it  would  be  indicative  of  the 
relation  of  protector  to  protected  state.  Any  right  of  inter- 
ference in  the  internal  affairs  of  the  states  concerned  would 
not  necessarily  arise  from  the  treaty,  but  from  the  inferior 
status  of  certain  of  these  states,  of  which  the  treaty  would  be 
but  the  formal  expression. 

51  Such  an  exercise  of  the  power  of  international  police 
regulation  is  as  we  have  seen  (§  9)  valid  only  when  it  is 
reasonably  necessary.  But  a  treaty  signed  by  an  over- 
whelming majority  of  the  states,  or  even  by  a  concert  of 
powers  which  exercises  certain  executive  functions  is  prima 
facie  valid. 


444  NON-INTERFERENCE 

In  conclusion,  we  may  summarize  the  results  of  our 
discussion:  whenever  the  justification  of  intervention 

The  treaties  of  Westphalia  and  Utrecht,  for  example,  con- 
tain provisions  relative  to  the  internal  affairs  of  certain 
states  and  authorize  intervention  therein.  The  provisions 
were  rightly  considered  as  justifiable  efforts  to  preserve  the 
peace  of  Europe  and  the  independence  of  all  the  states. 

The  treaty  by  which  the  powers  agreed  to  exclude  Napoleon 
from  the  throne  of  France  was,  under  the  circumstances,  a 
perfectly  proper  exercise  of  international  police  power.  But 
not  so  the  treaty  signed  by  Austria,  Prussia,  and  Russia  for 
the  partition  of  Poland,  for  it  was  not  done  in  the  interest 
of  Europe.  France  and  England  did  not  consent,  and  the  act 
itself  was  evidently  undertaken  more  to  sate  the  greed  of  the 
partitioning  powers  than  to  insure  the  peace  and  security  of 
Europe. 

Because  general  treaties  providing  for  the  reasonable  exer- 
cise of  international  police  are  legal,  it  does  not  follow  that 
other  treaties  which  contemplate  interference  by  a  particular 
state  are  likewise  legal.  On  the  contrary  they  are  without 
any  legal  foundation  whatever,  unless  they  merely  confirm 
a  supervisory  relationship  such  as  has  long  existed  between 
England  and  Portugal  and  now  exists  between  the  United 
States  and  Cuba.  (Cf.  Bernard:  Non-intervention,  p.  15, 
relative  to  the  German  Confederation.)  The  failure  to 
understand  this  important  distinction  has  led  several  of  the 
most  respectable  authorities  into  the  error  of  justifying  inter- 
ference in  constitutional  questions  when  the  action  was  in 
fulfilment  of  a  treaty  stipulation.  (See  F.  de  Martens: 
Volkerrecht  [Bergbohm's  translation],  §  76;  Heffter:  Volker- 
recht,  §  45.)  Hall  also  is  confused  (see  International  Law,  4 
ed.,  §  91,  p.  300.)  Later  writers  have  fallen  into  the  opposite 
error  of  passing  over  international  police  regulation,  and  de- 
nying any  right  to  intervene  in  constitutional  matters.  In  con- 
sequence of  this  erroneous  premise,  they  reach  the  false  con- 
clusion that  all  treaties  purporting  to  give  this  right  are 
illegal. 

Hall  is  not  free  from  this  confusion,  although  he  perceives 
that  the  treaties  to  which  he  refers  were  probably  once  in 
conformity  with  international  law.  He  remarks:  "It  may 
perhaps  at  one  time  have  been  an  open  question  whether  a 
right  or  a  duty  of  intervention  could  be  set  up  by  a  treaty 
of  guaranty  binding  a  state  to  maintain  a  particular  dynasty 
or  a  particular  form  of  government  in  the  state  to  which  the 
guaranty  applied.  But  the  doctrine  that  intervention  on 


TREATY   RIGHTS  445 

is  based  upon  a  treaty,  it  is  necessary  first  to  show  that 
the  purpose  of  the  treaty  was  legitimate.  Treaties 

this  ground  is  either  due  or  permissible  involves  the  assump- 
tion that  independent  states  have  not  the  right  to  change  their 
government  at  will,  and  is  in  reality  a  relic  of  the  exploded 
notion  of  ownership  on  the  part  of  the  sovereign.  According 
to  the  views  which  are  now  held  as  to  the  relation  of  mon- 
archical or  other  governments  to  the  states  which  they  repre- 
sent, no  case  could  arise  under  which  a  treaty  of  the  sort 
could  be  both  needed  and  legitimate.  As  against  interference 
by  a  foreign  power  the  general  right  of  checking  illegal 
intervention  is  enough  to  support  counter  interference;  and 
as  against  a  domestic  movement  it  is  evident  that  a  contract 
of  guaranty  is  made  in  favor  of  a  party  within  the  state  and 
not  of  the  state  as  a  whole,  that  it  therefore  amounts  to  a 
promise  of  illegal  interference,  and  that  being  thus  illegal 
itself,  it  cannot  give  a  stamp  of  legality  to  an  act  which 
without  it  would  be  unlawful."  (W.  E.  Hall:  International 
Law,  4  ed.,  1895,  §  93,  p.  305-6.)  Continuing  in  a  footnote, 
he  says:  "Some  treaties,  e.  g.,  the  Treaties  in  1713,  by  which 
Holland,  France,  and  Spain  guaranteed  the  Protestant  suc- 
cession in  England  (Dumont,  viii.  i.  322,  339,  393),  and  the 
Final  Act  of  the  Germanic  Confederation,  arts.  25  and  26  (De 
Martens,  Nov.  Rec.  v.  489),  contains  guaranties  which  clearly 
extend  to  cases  arising  out  of  purely  internal  troubles;  most 
treaties  of  guaranty,  however,  are  directed  against  the  pos- 
sible action  of  foreign  powers."  Hall  also  gives  several  of 
the  references  which  we  have  cited  above,  showing  the  care 
with  which  he  has  considered  this  question.  (See  also 
Halleck,  ch.  IV,  §  8,  p.  86;  Twiss,  vol.  I,  §  231.) 

Although  G.  F.  de  Martens  (Precis  [ed.  1821],  §  78)  seems 
likewise  to  err,  we  see  in  a  later  portion  of  his  work  (§  115) 
that  he  only  considers  a  treaty  to  authorize  interference  in 
matters  which  are  not  essential  to  the  independence  of  the 
State. 

Bluntchli  avoids  both  pitfalls  by  a  guarded  statement :  "It 
may  happen  that  a  state  intervenes  when  the  rights  which 
have  been  accorded  to  it  by  treaty  are  affected  by  changes 
which  occur  in  the  constitution  of  another  state.  It  may  not, 
however,  do  so  unless  international  law  authorizes  it  to  defend 
the  rights  in  question.  Thus  the  overthrow  of  the  dynasty, 
or  a  change  in  the  order  of  succession  due  to  a  revolution, 
are  questions  of  constitutional,  but  not  of  international  law. ' ' 
(Translated  from  Bluntchli:  Das  Moderne  Volkerrecht, 
1868,  §  479,  note  2.) 


446  NON-INTERFERENCE 

which  have  the  support  of  a  majority  of  the  states  are, 
however,  to  be  presumed  to  be  a  sufficient  justification 
for  the  acts  they  contemplate,  unless  it  be  shown  that 
the  provisions  of  the  treaty  constitute  an  unreasonable 
curtailment  of  the  rights  of  an  independent  state  not 
necessary  for  the  peace  and  security  of  international 
society. 


CHAPTER  IV 
POLITICAL  ACTION 

§  20.     IMPERFECT  RIGHTS  AND  DUTIES 

If  the  wisdom  of  man  were  perfect,  he  would  dis- 
cover and  formulate  perfect  laws  for  the  government 
of  nations;  but  imperfections  are  inevitable,  and  an 
unwise  law  will  check  progress,  lead  to  abuse,  and  finally 
be  disregarded  or  replaced  by  a  better.  But  we  must 
have  laws  for  the  nations,  since  without  them  inter- 
national intercourse  were  impossible.  The  laws  which 
are  adopted  must  not  be  so  rigid  or  so  extensive  as  to 
exceed  the  juridical  experience  of  the  law-givers.  In 
other  words,  it  is  not  yet  possible  to  regulate  too  defi- 
nitely the  whole  of  the  relations  of  the  states,  and  the 
rules  which  are  adopted  will  be  found  to  be  more  prac- 
tical if  they  have  a  certain  margin  for  play  or  a  certain 
room  for  variation  in  the  manner  in  which  they  are 
fulfilled. 

The  system  applied  by  states  in  practice  will  be 
found  to  coincide  with  that  we  have  outlined,  reason- 
ing abstractly.  The  necessary  play  or  elasticity  we 
find  to  lie  mainly  in  the  discretion  which  each  inde- 
pendent state  at  present  enjoys  as  to  the  manner  in 
which  it  will  fulfil  its  international  obligations. 

This  play  or  elasticity  in  the  enforcement  of  inter- 
national law  is  an  inevitable  consequence  of  the  system 
of  self -execution,  sometimes  less  accurately  called  self- 
help,  and  partly  for  this  reason,  perhaps,  this  archaic 
method  of  procedure  is  still  preserved  in  international 
relations.  At  one  time,  before  the  juridical  wisdom  of 

447 


448  POLITICAL  ACTION 

our  ancestors  made  it  possible  to  form  a  more  complete 
governmental  organization,  we  used  to  employ  the 
same  system  in  our  civil  affairs. 

An  independent  state  sufficiently  powerful  to  benefit 
from  this  system  of  self -execution  is  given  a  great  op- 
portunity to  follow  its  own  judgment  in  determining  in 
the  first  place  what  its  international  rights  and  obli- 
gations are,  and  in  the  second  place  how  and  when  these 
obligations  should  be  fulfilled  and  these  rights  main- 
tained. A  great  state  is  thus  able  to  serve  its  selfish 
ends,  and  in  the  guise  of  fulfilling  and  defending  the  law 
to  find  a  pretext  for  the  protection  of  its  own  interests. 
Furthermore  a  state  may  enter  into  agreements  with 
other  powers  in  regard  to  the  manner  in  which  rights 
will  be  pressed,  and  this  again  may  serve  to  foster  or 
protect  its  special  interests. 

The  recognition  of  a  new  state  or  government  affords 
a  good  example :  When  the  inhabitants  of  an  area  suf- 
ficiently large  and  advantageously  situated  for  the 
practical  purposes  of  maintaining  national  independ- 
ence are  organized  under  a  government  firmly  estab- 
lished in  its  control  of  the  territory  in  question,  and 
when  this  government  is  capable  and  willing  to  fulfil 
the  obligations  of  an  independent  state,  international 
law  declares  that  this  state  which  exists  de  facto  should 
be  recognized  de  jure  as  a  member  of  the  international 
society.  The  denial  of  recognition  to  the  de  facto  state, 
possessing  de  facto  qualifications  for  the  recognition  of 
independence,  may  and  usually  will  result  in  a  recourse 
to  reprisals  for  the  purpose  of  enforcing  its  right.  It 
is  evident,  however,  that  the  decision  as  to  when  the 
qualifications  requisite  for  statehood  have  been  ful- 
filled cannot  be  set  down  with  absolute  precision,  con- 
sequently it  is  free  to  every  state  to  give  or  withhold  its 
recognition,  and  in  reaching  this  decision,  it  may  be 
guided  by  selfish  considerations. 


IMPERFECT  RIGHTS  AND  DUTIES  449 

The  course  which  a  state  adopts  for  the  protection 
of  its  national  interests  and  the  particular  interpreta- 
tion of  international  rights  and  obligations,  which 
national  sympathy  or  national  interests  dictate,  are 
spoken  of  as  policies  of  the  government  in  question. 
Sometimes  when  they  are  persistently  followed,  not- 
withstanding changes  in  the  personnel  of  the  govern- 
ment, these  policies  are  said  to  be  national  or  state 
policies.  Otherwise,  they  are  merely  temporary  poli- 
cies, what  we  call  administration  policies. 

President  Wilson,  for  example,  did  his  utmost  to 
commit  the  American  Government  to  a  policy  of  con- 
tinued participation  in  the  settlement  of  European  dif- 
ferences. Under  President  Harding,  the  Executive  and 
Legislative  branches  of  the  Government,  so  far  as  the 
latter  has  a  part  in  the  determination  of  our  foreign 
policy,  seem  to  concur  in  their  firm  resolve  to  adhere 
to  the  traditional  policy  of  the  United  States,  and  to 
avoid  in  as  far  as  possible  participating  in  the  settle- 
ment of  European  political  controversies. 

Enough  has  been  said  to  indicate  how  much  room  is 
still  left  for  the  discretional  or  political  action  of  each 
independent  state.  Within  these  limits,  the  state  which 
is  sufficiently  powerful  to  make  use  of  this  liberty  of 
action  may  determine  the  policy  which  it  will  adopt, 
and  in  a  large  measure  it  may  be  expected  to  choose 
this  policy  with  a  view  of  protecting  its  important  in- 
terests. 

The  condition  which  we  have  just  described  means 
that  many  of  the  rights  and  duties  of  states  are  still  im- 
perfect in  the  sense  that  their  fulfilment  depends  upon 
the  will  of  the  interested  parties  and  impartiality  is  not 
sufficiently  guaranteed  by  an  effective  sanction.  Ob- 
viously this  is  a  defect,  but  it  is  one  which  cannot  be 
remedied  until  the  nations  are  sufficiently  wise  to  per- 

29 


450  POLITICAL  ACTION 

feet  their  law  and  until  they  are  willing  whenever  the 
occasion  arises  to  make  the  sacrifices  necessary  to  en- 
sure its  enforcement. 

§  21.     POLITICAL,  INFLUENCE 

It  might  perhaps  be  thought  that  the  place  allowed  to 
governmental  discretion  in  the  fulfilment  of  the  state's 
international  obligations  and  the  insistence  upon  its 
rights  would  afford  an  ample  opportunity  for  the 
powers  to  protect  their  interests,  without  any  depar- 
ture from  the  strict  limits  of  legal  action.  Neverthe- 
less, the  states  enjoy  still  other  means  to  guard  over  and 
to  foster  interests  which  appear  of  a  sufficient  impor- 
tance to  warrant  the  effort.  Every  powerful  state  makes 
use  of  its  political  influence  to  induce  its  neighbors, 
especially  its  weaker  neighbors,  to  adopt  the  course 
which  the  powerful  state  believes  will  prove  most  ad- 
vantageous to  itself.  This  influence  is,  as  we  have  said, 
especially  potent  with  the  smaller  states,  who  fear  to 
give  offense.  To  ignore  the  suggestion  from  a  great 
state  may  cause  the  latter  to  seek  at  the  first  opportu- 
nity a  pretext  for  employing  its  superior  force  against 
the  weaker,  or — what  is  more  likely  to  occur — it  may 
lend  its  influence  covertly  to  support  the  internal  ene- 
mies of  the  government  until  they  overthrow  and 
replace  it  with  one  more  pliant  to  the  foreign  will. 
Even  though  the  great  state  do  no  more  than  to  insist 
upon  the  meticulous  observance  of  the  letter  of  its  strict 
rights  in  all  their  relations,  the  resulting  inconveniences 
and  annoyance  might  prove  intolerable  for  the  weaker 
state.  The  continuance  of  international  intercourse 
always  presupposes  a  neighborly  spirit  of  give  and 
take.  Whenever  a  great  state  relies  upon  its  superior 
force  to  make  its  weaker  neighbor  line  up  to  the  strict- 
est interpretation  of  its  rights  while  it  continues  to 


ADJUSTMENT  451 

allow  itself  the  habitual  latitude  in  fulfilling  its  recip- 
rocal obligations,  the  weaker  state  must  surely  yield 
unless  it  find  as  champion  some  other  powerful  state. 

The  smaller  and  weaker  states  recognize  this  situ- 
ation before  matters  proceed  too  far  and  yield  with 
good  grace  to  a  reasonable  dictation  in  matters  of 
policy  whenever  they  find  themselves  without  the  count- 
erbalancing support  of  a  rival  great  state.  The  practi- 
cal consequence  is  to  bring  the  smaller  states  within  the 
political  orbit  of  their  most  powerful  neighbor.  This 
mutual  bond  of  protection  and  dependence  offers  a 
large  opportunity  to  the  paramount  state  for  the  exer- 
cise of  political  direction  in  all  matters  which  in  its 
judgment  are  important  for  the  health  and  growth  of 
this  political  affiliation. 

It  will  be  evident  to  all  how  large  a  place  political 
action  still  holds  in  the  intercourse  of  independent 
states,  equal  though  they  be  as  regards  the  rights  which 
have  been  recognized  as  a  part  of  their  common — that 
is  international — law. 

§  22.    ADJUSTMENT 

Since  the  object  of  international  law  is  the  preserva- 
tion and  prosperity  of  the  society  of  states,  it  follows 
that  the  rights  which  it  has  recognized  for  the  protec- 
tion of  each  state  are  subject  always  to  the  restriction 
or  proviso  that  they  be  not  used  to  the  detriment  of  the 
others. 

Otherwise  stated,  each  state  is  obligated  not  to  insist 
upon  its  own  right  when  it  will  thereby  cause  a  dispro- 
portionate injury  to  the  interests  and  prosperity  of 
others.  The  conflict  between  the  opposing  rights  or  be- 
tween rights  and  interests  is  to  be  settled  on  a  basis  of 
a  reasonable  compromise.  Just  what  this  compromise 


452  POLITICAL  ACTION 

is  in  any  particular  case  is  a  matter  of  fact  to  be  de- 
termined by  the  states  concerned  in  the  same  manner  as 
the  determination  as  to  the  grounds  of  intervention  pre- 
viously discussed.  When  either  state  proves  unreason- 
able and  gives  evidence  of  an  uncompromising  spirit 
such  as  to  prevent  the  adjustment  of  the  conflict,  a  right 
of  intervention  upon  this  ground  arises. 

It  is  not  the  right  to  decide  when  the  protection  of  in- 
terests requires  recourse  to  force  which  is  the  ground 
of  this  action,  for  that  is  a  matter  of  individual  or  sub- 
jective appreciation  which  cannot  override  the  right  of 
another  state  to  insist  upon  the  respect  of  its  sovereign- 
ty and  independence.  But  when  these  rights  of  sov- 
ereignty or  independence  are  abused,  there  arises  an 
offence  against  the  common  interest  of  all  the  states. 
For  the  common  interest  and  prosperity  depend  upon 
the  prosperity  of  the  individual  member.  If  one  mem- 
ber state  refuses  to  depart  somewhat  from  its  technical 
or  formal  rights  of  sovereignty  and  independence  in 
order  to  facilitate  for  a  sister  state  the  conservation  of 
its  important  interests,  there  is  an  abuse,  an  antisocial 
uncompromising  spirit  which  is  a  justifiable  ground  of 
intervention. 

It  has  long  been  recognized  as  a  precept  of  interna- 
tional morality  that  every  state  should  evince  a  spirit 
of  reasonable  compromise  for  the  adjustment  of  all 
controversies  which  threaten  to  disturb  the  peace  of 
nations,  but  the  study  of  international  relations  shows 
that  this  obligation  is  something  more  than  a  precept 
of  morality  the  fulfilment  of  which  is  left  to  the  con- 
science of  the  separate  states.  It  is  a  legal  duty 
rightly  recognized  as  a  rule  of  international  law,  since 


ADJUSTMENT  453 

it  meets  successfully  the  tests  of  its  jural  character, 
in  that  it  is  observed  by  the  states  in  their  practice 
and  enforced  by  appropriate  action.  When  once  we 
perceive  that  the  obligation  to  agree  to  a  reasonable 
compromise  is  a  rule  of  international  law  which  all  the 
states  are  obligated  to  intervene  to  enforce,  we  have 
brought  every  political  controversy  within  legal  limits 
and  we  are  able  to  set  bounds  to  the  hitherto  uncon- 
trolled freedom  of  political  action. 

The  recognition  of  the  principle  of  the  obligation  to 
compromise  one's  rights  and  interests  upon  a  reason- 
able basis  to  preserve  the  peace  brings  all  recourse  to 
force  under  the  domain  of  law,  and  permits  other  states 
to  counter-intervene  against  a  state  that  has  shown  an 
uncompromising  attitude  or  abusively  insisted  upon 
its  rights.  Gradually  through  experience  and  through 
a  better  understanding  of  the  principles  of  political 
science  it  will  be  possible  to  lessen  the  uncertainty  in 
regard  to  the  basis  of  a  reasonable  adjustment. 

To  those  who  would  reject  this  principle  of  interven- 
tion to  enforce  respect  for  the  right  of  reasonable  ad- 
justment we  can  only  point  out  that  the  alternative  is  to 
permit  every  state  in  the  exercise  of  its  full  and  unre- 
stricted discretion  to  decide  when  it  is  necessary  to  em- 
ploy force  for  the  defense  of  its  rights  and  interests 
and  to  decide  for  itself  to  what  degree  it  will  push  its 
insistence  thereon.  This  is  the  doctrine  of  perfect 
rights,  and  covers  for  those  who  accept  it  the  intolerable 
doctrine  of  absolute  necessity,  that  is,  the  right  of 
every  state  to  disregard  any  right  where  it  believes  it 
necessary  for  the  preservation  of  its  existence.  What 
rational  being  will  discard  a  system  admittedly  imper- 


454  POLITICAL  ACTION 

feet,  it  is  true,  as  regards  its  definition,  but  capable  of 
gradual  improvement  and  ultimate  perfection,  for  a 
system  which  enthrones  brute  force  and  recognizes  doc- 
trines of  international  anarchy? 


CHAPTER  V 
CONCLUSION 

§  23.     THE  RULE  OF  REASON 

In  the  foregoing  pages  we  have  analyzed  the  various 
grounds  upon  which  intervention  may  justly  be  under- 
taken to  defend  international  law  rights  either  by  way 
of  interposition  or  international  police.  We  have  at- 
tempted to  draw  the  line  between  the  due  exercise  of 
sovereignty  which  the  law  of  nations  recognizes  and  the 
abusive  insistence  upon  independent  action  without 
consideration  of  the  equally  important  rights  of  other 
states  and  the  interests  of  the  common  weal.  Whether 
the  state  is  acting  in  the  defense  of  a  recognized  right 
or  in  pursuit  of  its  interests,  there  is  no  absolute  or 
perfect  right,  but  all  rights  are  to  be  asserted  with  due 
regard  to  the  preservation  of  the  independence,  secur- 
ity, and  prosperity  of  neighboring  states.  Rights 
which  have  been  given  for  the  common  good  of  all  the 
states  may  not  be  perverted  to  menace  international 
security. 

Finally  as  a  result  of  our  investigation  of  what  we 
may  call  rights  in  political  action,  we  laid  down  a  rule 
of  the  broadest  application:  that  the  employment  of 
force  under  international  law,  whether  it  be  to  defend 
rights  or  to  protect  and  foster  interests,  is  always  lim- 
ited by  the  condition  that  there  shall  first  have  been 
made  a  reasonable  effort  to  reach  an  amicable  adjust- 
ment. 

It  remains  for  us  to  define  what  effort  is  "reason- 
able." 

455 


456  CONCLUSION 

Every  state  we  have  seen  has  a  sovereign  right  to  de- 
cide when  its  rights  are  menaced  and  when  its  vital 
interests  are  in  jeopardy.  If  it  were  likewise  at  liberty 
immediately  to  employ  its  force  upon  the  warrant  of 
this  sovereign  determination,  there  would  be  no  secur- 
ity for  any  state  and  international  law  would  be  an 
empty  word. 

To  keep  within  the  bounds  of  law  every  state  that  em- 
ploys its  might  to  defend  its  rights  or  to  protect  its  in- 
terests against  the  abusive  insistence  upon  alleged 
right  by  another  must  first  justify  its  action  before  its 
sister  states ;  it  must  second  observe  all  the  delays  and 
forms  of  procedure  customary  in  international  prac- 
tice; and  it  must  third — outwardly  at  least — evince  a 
disposition  to  adopt  any  suggestion  or  compromise 
which  gives  promise  of  a  peaceful  solution  without  sac- 
rificing its  own  important  interests  or  the  means  to  en- 
force them. 

In  each  one  of  these  steps  the  state  itself  has  in  first 
instance  the  sovereign  right  to  decide  whether  it  has 
fulfilled  the  law,  but  at  each  step  also  the  family  of 
states  are  free — nay  they  are  bound — in  as  far  as  the 
circumstances  will  permit,  to  correct  any  erroneous  or 
unjust  decision. 

In  international  society,  as  in  every  society  which  is 
at  the  .stage  of  self -execution,  there  must  always  be 
such  an  appeal  from  the  subjective  (sovereign)  decision 
of  the  individual  state  judging  the  rectitude  of  its  own 
conduct  to  the  forum  of  general  public  opinion — to  the 
consensus  of  opinion  of  all  the  states. 

In  this  manner  the  application  of  the  law  of  inter- 
vention is  guided  by  the  opinion  of  all  of  the  states 
fixing  the  limits  of  the  reasonable  discretion  which  each 
state  may  enjoy  in  acting  for  the  defense  of  its  own 
rights  and  interests.  This  builds  the  whole  system  of 


THE  RULE  OF  REASON  457 

international  law  upon  the  foundation  of  what  the  con- 
sensus of  the  states  judge  to  be  reasonable  under  the 
rule  of  reason. 

In  those  questions  where  there  is  no  consensus  of 
opinion  but  only  opposing  views  supported  by  forces 
approximately  equal,  there  can  be  no  rule  of  law. 

The  nations  are  then  not  ready  to  recognize  the 
opinion  of  either  group  as  the  rule  of  law.  They  must 
muddle  along  by  some  half-way  measure.  The  states 
must  expect  to  accept  some  compromise  to  govern  each 
of  such  differences  as  it  arises  or  to  try  a  temporary 
expedient  until  such  time  as  the  partisans  of  the  op- 
posed views  are  better  informed  as  to  the  limits  of  their 
rights  and  as  to  the  relation  of  the  forces  with  which 
the  opposing  opinions  can  be  sustained. 

Upon  this  basis  of  appeal  to  the  tribunal  of  inter- 
national reason  as  interpreted  and  supported  by  the 
consensus  of  opinion  in  a  preponderating  majority  of 
the  states,  the  just  peace  of  nations  rests.  Upon  this 
basis  the  majority  of  the  states  do  in  ultimate  analysis 
insist  that  the  law  of  nations  be  observed.  In  those 
other  non-legal  or  extra-legal  relations  which  are  desig- 
nated as  political,  there  is  likewise  a  supreme  and  guid- 
ing— one  might  better  say  limiting — rule  of  law  to  guide 
state  action:  namely  that  every  state  shall  evince  a 
broad  spirit  of  tolerance — an  attitude  of  live  and  let 
live.  This  guiding  rule  may  be  formulated,  as  we  have 
seen  above,  as  the  legal  obligation  that  states  in  their 
political  controversies  shall  observe — the  rule  which 
enjoins  upon  them  to  agree  to  a  reasonable  compromise 
of  their  differences. 

If  we  have  succeeded  in  defining  the  legal  grounds  of 
intervention,  including  that  of  intervention  justified 
upon  the  ground  of  the  refusal  to  agree  to  a  reasonable 
adjustment  or  compromise,  we  have  made  it  possible 
for  the  enlightened  public  opinion  of  the  states  con- 


458  CONCLUSION 

cerued  and  of  the  whole  world  to  support  the  govern- 
ments that  reasonably  observes  the  law. 

For  generations  it  has  been  the  custom  of  govern- 
ments to  justify  their  recourse  to  force  before  their 
nationals,  and  it  will  be  no  small  guarantee  of  the  ob- 
servance of  the  law  when  governments  understand  that 
their  explanations  and  excuses  must  stand  the  test  of 
reason — by  which  is  meant  unprejudiced  examination 
of  the  alleged  grounds  of  action  in  all  the  states  of  the 
world.  To-day  when  the  nations  are  so  dependent  one 
upon  the  other,  and  when  all  recognize  the  importance 
of  insisting  upon  the  respect  for  the  law  of  nations, 
states  will  be  quicker  to  intervene  in  vindication  of  their 
law  than  formerly  they  were.  The  motive-spring  of 
this  salutary  action  will  ever  remain  enlightened  pub- 
lic opinion  in  each  state.  As  long  as  public  opinion  has 
this  directing  influence,  the  citizen  himself  must  assume 
his  part  of  the  responsibility  for  the  faithful  observ- 
ance of  international  law.  To  meet  this  responsibility 
fully  he  must  be  ready  to  commend  his  government  for 
its  just  action,  to  condemn  it  for  its  violations  of  inter- 
national law,  and  to  lend  his  support  for  the  adoption 
of  a  policy  of  enlightened  self-interest  which  neither 
sacrifices  essential  interests  to  quixotic  and  ill-balanced 
impulses,  nor  yet  is  unmindful  of  the  common  interest 
of  all  the  states  to  maintain  peace  and  to  preserve  the 
health  and  rightful  independence  of  each  of  the  states 
separately ;  so  that  all  humanity  may  continue  uninter- 
ruptedly its  march  toward  the  goal  anticipated  by  the 
poet: 

Till  the  war-drum  throbb'd  no  longer,  and  the  battle-flags 

were  furl'd 
In  the  Parliament  of  man,  the  Federation  of  the  world. 


There  the  common  sense  of  most  shall  hold  a  fretful  realm 

in  awe, 
And  the  kindly  earth  shall  slumber,  lapt  in  universal  law. 


BIBLIOGRAPHY 

OF 
INTERVENTION 


BIBLIOGRAPHY  OP  INTERVENTION 

The  following  list  of  books  and  articles  relative  to 
intervention  is  arranged  alphabetically,  substantially 
in  accordance  with  the  pattern  of  the  cards  printed  by 
the  Library  of  Congress.  The  indication  of  the  classi- 
fication or  "book  numbers"  will  make  it  possible  for 
students  using  libraries  which  employ  this  system  to 
obtain  the  book  desired  with  the  least  effort,  and  by 
noting  the  card  number  on  the  left  hand  side,  they  may 
purchase  separate  cards  for  each  item,  from  the 
Library  of  Congress. 

References  to  the  principal  bibliographies  on  inter- 
vention will  be  found  in  a  foot  note,  but  none  of  these, 
so  far  as  I  am  aware,  is  extensive  or  critical.1 


1The  following  works  contain  bibliographies  or  bibliographical  notes: 

Berner  in  Bluntschli's  Staatsworterbuch,  1860,  Vol.  V,  p.  354.  Has 
some  valuable  comments. 

Bernard,  1860;    Non-intervention,  p.  10  note. 

Hodges,  H.  F. ;  Intervention,  p.  263-71.  Incomplete  and  not 
important. 

Geffcken,  in  Hollzendorff 's  Handbuch,  Vol.  IV,  p.  131. 

Kraus,  H. :  Die  Monroedoktrin,  p.  369  note  (1)  has  references  on 
intervention.  Kraus  gives  other  bibliographical  notes  of  value. 

Library  of  Congress  typewritten  list  on  Intervention.  This  is  the 
most  complete  list  which  has  appeared  to  date,  but  it  lacks  a  number 
of  important  works  not  yet  to  be  found  in  the  Library  of  Congress 
collection,  and  it  makes  no  comment  upon  the  merits  of  the  respective 
works. 

Library  of  Congress  has  also  printed  Bibliographies  containing  lists 
on  Mediation,  Balance  of  Power,  etc. 

Oppenheim,  L. :  International  Law.  Second  Edition,  Vol.  I,  p.  188, 
3d  ed.,  Vol.  I,  p.  221. 

Bivier,  A.:    Droit  des  Gens,  Vol.  I,  389-404. 

Rotteek,  H.  von:  Recht  des  Einmischung,  1845,  p.  7-8,  note.  One 
of  the  best  bibliographies. 

461 


462  INTERVENTION 

It  has  seemed,  therefore,  desirable  to  add  a  few  words 
of  comment  upon  the  character  and  merits  of  the  prin- 
cipal works.  These  superficial  indications  are  by- 
products of  my  investigations,  jotted  down  at  differ- 
ent times  in  a  sketchy,  fragmentary  manner,  without 
any  uniformity  of  treatment,  and  they  are  submitted 
for  what  they  may  be  worth.  No  claim  is  made  that 
they  represent  the  compiler's  final  judgment  upon  the 
respective  merits  of  the  works  discussed. 

It  is  to  be  hoped  that  other  investigators  will  reform 
them,  or  submit  suggestions  and  comments,  in  the  event 
of  the  publication  of  a  later  edition. 

A  system  of  stars  has  been  used  to  indicate  the 
relative  merits  of  the  more  important  works.  Four 
stars  indicate  those  that  are  considered  to  be  the  most 
meritorious. 

Under  certain  of  the  incidents  of  intervention  in- 
cluded in  the  list  will  be  found  a  few  of  the  books  and 
articles  which  discuss  the  facts  and  the  justification 
for  the  action  taken.  It  did  not,  however,  seem  desir- 
able to  confuse  a  bibliography  devoted  to  the  principles 
of  intervention  with  a  large  number  of  wrorks  devoted 
almost  exclusively  to  a  consideration  of  diplomatic 
incidents  and  discussions. 

Except  when  the  contrary  is  stated,  I  have  tried  to 
examine  each  item  of  this  bibliography  with  such  care 
as  its  importance  appeared  to  justify.  In  the  case  of 
works  which  are  not  in  the  Library  of  Congress,  I  have 
indicated  some  other  library  where  they  are  available, 
and  when  I  have  not  discovered  them  in  this  country, 
the  European  repository  has  been  mentioned. 

The  trained  librarians  on  the  staff  of  the  Library 
of  Congress,  The  Harvard  Law  Library,  the  Library 
of  the  Carnegie  Endowment  for  Peace,  The  New  York 
Bar  Association,  Columbia  Law  School,  and  the  New 


BIBLIOGRAPHY  463 

York  Public  Library  have  been  generous  with  their 
assistance.  In  addition  to  the  libraries  above  men- 
tioned I  have  examined  the  card  catalogues  of  the  fol- 
lowing: State  Department;  The  University  of 
Pennsylvania;  The  Pennsylvania  Historical  Society, 
The  Library  Company  of  Pennsylvania,  Princeton 
University,  Yale  University,  Boston  Athenaeum. 

Without  the  spirit  of  cooperation  and  assistance 
which  Mr.  Herbert  Putnam  has  inspired  in  every  de- 
partment of  the  Library  of  Congress,  this  bibliography 
could  not  have  been  made  so  complete,  and  to  him  I 
wish  particularly  to  express  my  appreciation. 


[Aldebert,] 

De  1 'intervention  [Dissertation,  Paris] 
Paris,  V,  Giard  and  E.  Briere,  1902,  ii-\-152p. 

This  work  is  cited  by  Jean  Lagorgette:  Le  Bole  de  la  Guerre, 
p.  230,  and  appears  to  relate  to  public  law,  but  when  I  obtained 
a  copy  from  abroad  I  found  it  related  solely  to  intervention  in 
private  law. 

•H-fr*Amos,  Sheldon,  1835-1887.  [Barrister-at-Law;  late 
Professor  of  Jurisprudence  in  University  College, 
London.] 

Political  and  Legal  Remedies  for  War. 
London,  1880,  ii+364  p.,  23  cm. 

10-16358  JX1948.AG 

[A  New  York  edition  of  the  same  date  by  Harper  and  Bros, 
is  smaller  in  size  and  type,  and  inferior  in  general  makeup.  The 
indexing  of  the  material  is  the  same  in  both.] 

One  of  the  very  few  serious  studies  of  the  problem  of  the 
restriction  of  the  unnecessary  use  of  force.  It  is  original,  judi- 
cious in  treatment,  suggestive,  and  in  the  main  also  it  is  sound. 

+Angell,  James  Burrill,  1829-1916. 

The  European  concert  and  the  Monroe  Doctrine. 
A  discourse  before  the  Phi  beta  kappa  Society  of 


464  INTERVENTION 

Harvard  University,  June  28, 1905.     16  p.,  23  cm. 

[Harvard  Law  Library] 

A14-1083 

Valuable  because  of  the  broad  diplomatic  experience  of  the 
author  and  his  unprejudiced  examination  of  the  question  of  the 
European  concert  and  its  supremacy,  but  the  treatment  is  some- 
what superficial. 

Annuaire  de  1'institut  de  droit  international.     See; 
Institut  de  droit  international,  Annuaire. 

10-16478  Eevised  JX24.I4 

Anonymous. 

Legal  opinions  and  observations  on  the  corre- 
spondence lately  addressed  by  the  acting  French 
consul  in  Lisbon  to  the  Portuguese  Government. 
London,  no  date,  50  p.,  8°. 

[Harvard  Law  Library] 

Anonymous. 

Specific  answers  to  the  several  demands  of  the 
acting  French  consul  in  Lisbon  to  the  Portuguese 
Government  in  his  note  of  March  28,  1831. 
London,  no  date,  15  p.,  8° . 

[Harvard  Law  Library] 

Anonymous. 

Particulars  and  corresponding  documents  re- 
lating to  the  French  aggression  on  Portugal. 
London,  no  date.    44  p.,  8° . 

I  have  not  examined  this  work. 

Anonymous  [under  pseudonym  of  Stephanus  Junius 
Brutus,  accredited  to  Hubert  Languet  or 
Duplessis-Mornay] . 

Vindiciae  contra  tyrannos  [Grounds  of  Rights 
against  Tyrants]. 


BIBLIOGRAPHY  465 

1579,  and  often  thereafter.     The  Library  of  Con- 
gress has  an  edition  printed  at  Basle  1589. 

9-10598  JC.143.M3.1589 

See  W.  A.  Dunning:  Political  Theories,  Luther  to  Montesquieu, 
p.  47.  Prof.  Dunning  and  Prof.  Coker  refer  to  Encyclopedia 
Brittaniea  ' '  Lanquet ' '  and  Janet :  Histoire  de  la  science 
politique,  Vol.  II,  p.  31,  note  2.  They  used  the  edition  of  1595, 
bound  with  Machiavelli 's  Prince.  Esmein,  who  uses  an  edition 
of  1600,  says  (in  Nouvelle  revue  historique  de  droit  francais  et 
etranger,  1900,  p.  557),  "It  is  one  of  the  most  original  and 
powerful  of  the  writings  about  religion  (doctrine)  and  political 
controversy  of  that  fecund  period."  F.  W.  Coker  (Readings  in 
Political  Philosophy,  Xew  York,  1914,  p.  207-221)  has  translated 
a  portion,  and  Esmein  gives  French  translations  of  other  portions 
of  the  four  questions  considered.  The  fourth  is:  "Whether  it  is 
the  right  and  duty  of  princes  to  interfere  in  behalf  of  neighbor- 
ing peoples  who  are  oppressed  on  account  of  adherence  to  the 
true  religion,  or  by  any  obvious  tyranny. ' '  Prof.  Dunning 
Political  Theories  (p.  55)  says:  "The  answer  is  affirmative  on 
both  branches  of  the  question,  and  the  ground  is,  in  the  one  case, 
unity  of  the  Christian  Church;  in  the  other,  the  unity  of  humanity, 
involving  respectively,  duty  to  God  and  duty  to  one 's  neighbor. ' ' 
This  latter  Prof.  Dunning  remarks  strongly  presents  "an  en- 
lightened view  of  international  solidarity. ' ' 

Anonymous. 

De  justa  reipublicae  Christianae  in  reges 
impios  et  haereticos  authoritate  justissima  que 
catholicorum  ad  Henricum  Navarraeum  et 
quemcunque  haereticum  a  regno  Gallico  re- 
pellandum  confederatione. 
Paris,  Guillaume  Bichon,  1590. 

Esmein  (in  Nouvelle  revue  historique  de  droit  franfais  et 
etranger,  1900,  p.  553)  calls  this  "a  curious  little  book  inspired 
by  a  fierce  passion  and  sometimes  expressing  the  highest  ideals. ' ' 
He  says  it  supplied  the  Leaguers  with  arguments  to  justify  war 
against  the  French  Protestants  (Calvinists)  and  the  calling  in 
of  foreign  aid  on  the  ground  that  the  Protestants  were  not  French, 
and  that  it  was  a  duty  of  other  nations  to  repel  them. 

30 


466  INTERVENTION 

Anonymous  [See:  Kamptz,  Karl  C.  A.  H.  von]. 

Volkerrechtliche    Erorterung    des    Recht    der 
Europaischen   Machte   in   die   Verfassung   eines 
einzelnen  Staats  sich  zu  mischen. 
Berlin,  1821,  xvi+214  p.,  8°. 

[Harvard  Law  Library  and 
Yale  University  Library] 

*  Anonymous.    By  "R.  Q." 

A  review  of  the  preceding  work  by  Kamptz. 
in  Hermes,  1821,  Vol.  XI,  p.  142-156. 

Contains  an  important  discussion  of  intervention  and  severely 
criticizes  Kamptz 's  work. 

Anonymous.    By  "M.  M.  D.  et  R." 

Traite  sur  le  droit  d  'intervention. 
Paris,  1823. 

Cited  by  Rotteck  (Einmischung,  1845,  p.  8) ;  in 
Bluntschli's  Staatsworterbuch,  1860,  Vol.  V,  p. 
354;  Also  Heffter,  §  44,  note. 

I  was  unable  to  consult  this  work. 

Anonymous.    By  "Decimus." 

Intervention  and  its  fruits;  a  letter  to  Her 
Majesty's  Secretary  of  State  for  Foreign  Affairs. 
London,  Saunders  and  Otley,  1841,  32  p. 

[New  York  Library] 

Interestingly  written  attack  upon  Palmerston's  policy  regard- 
ing Turkey.  The  author  advises  England  to  hold  aloof  and  let 
Russia  occupy  the  Dardenelles,  and  France  occupy  Egypt.  Defends 
policy  of  complete  non-intervention. 

Anonymous. 

An  Appeal,  on  behalf  of  the  British  subjects 
residing  in  and  connected  with  the  river  Plate, 
against  any  further  violent  interventions  by  the 


BIBLIOGRAPHY  467 

British  and  French  Governments  in  the  affairs 
of  that  country. 
London,  1846.     8°. 

[Hague  Peace  Palace] 

I  was  unable  to  consult  this  work. 

*  Anonymous. 

Non-intervention,  A  Humbug, 
in  Spectator  of  July  3,  1847,  and  reprinted  in 
Living  Age,  1847,  vol.  14,  p.  284-286. 

Points  out  how  frequently  intervention  occurs,  and  declares 
it  is  often  a  duty.  Thinks  no  guiding  rule  is  possible. 

Anonymous. 

Intervention  anglo-franc.aise  dans  le  Rio  de  la 
Plata.      Missions     de     MM.     de     Deffaudis     et 
Walewski. 
Paris,  1848.    8°. 

[British  Museum,  8175.e.] 

I  was  unable  to  consult  this  work. 

Anonymous. 

Intervengao   estrangeira,   ou  documentos  his- 
toricos  sobre  a  intervenc.ao  armada  de  Franca, 
Hespanha  e  Inglaterra  nos  negocios  internos  de 
Portugal  no  anno  de  1847.    Vol.  1. 
Porto,  1848.     8°. 

[British  Museum,  8042.    aaa.25] 

I  was  unable  to  consult  this  work. 

Anonymous. 

Intervention  franchise  dans  les  affaires  d 'Italic 
en  1859. 
Paris,  1859.     86  p. 

[New  York  Library, 
British  Museum,  8032.h] 

Political  pamphlet:  reasons  why  France  undertook  war 
(p.  77);  results  of  the  war  (p.  73).  Does  not  discuss  principles 
of  intervention. 


468  INTERVENTION 

Anonymous. 

Le  principe  de  non-intervention. 
Paris,  1860.     16  p.,  8°. 

[Boston  Athenaeum  Library] 

Relates  to  Russian  intervention  in  Bessarabia.  This  article  is 
of  no  juridical  value. 

Anonymous.     [Harcourt's  letters  in  the  Times,  1863, 
were  signed  "Historicus."]     See  under  Harcourt. 

Anonymous. 

Intervention:  A  Duty  or  a  Crime. 
London,  1864.     8°. 

[British  Museum,  8092.  aaa] 

I  was  unable  to  consult  this  work. 

[Anonymous.] 

L 'intervention  militaire  anglaise   sur  le  con- 
tinent. 
Paris  and  Nancy,  Chapelot,  1912.    27  p.,  8°. 

[Listed  in  Berlin  Cards,  B.12.1819] 

This  pamphlet  does  not  relate  to  intervention,  but  discusses 
the  military  cooperation  of  England  and  France  in  the  event  of 
a  war  with  Germany. 

Anonymous. 

Our  Policy  in  Nicaragua,  by  "A  Friend  of 
Justice. ' ' 

in  North  American  Review,  January,  1913,  vol. 
197,  p.  50-61. 

AP2.N7  v.  197 

Condemns  interference  of  United  States  in  the  civil  conflict 
in  Nicaragua.  Does  not  discuss  the  principles  of  intervention. 


BIBLIOGRAPHY  469 

Anonymous. 

Intervention.      Non-intervention — theory     and 
practice.    The  true  tradition, 
in  London  Times,  May  17,  1919. 

An  argument  justifying  intervention  in  Eussia  against 
Bolshevists  and  pointing  out  that  Great  Britain  has  not  observed 
the  doctrine  of  non-intervention.  Refers  particularly  to  the  view 
expressed  by  George  III. 

•H-*  Arntz,  E.  R.  N.     [Professor  of  Law,  University  of 
Brussels.] 

The  views  of  Prof.  Arntz  in  regard  to  restric- 
tions to  be  applied  to  intervention,  especially 
humanitarian  intervention,  are  quoted  by  Rolin- 
Jaequemyns 

in  Revue  du  droit  international  et  de  la  legislation 
comparee,  1876,  vol.  8.    p.  675. 

1-7465  JX3.E4  Vol.  8 

Professor  Arntz  would  restrict  such  intervention  to  collective 
action  of  the  powers.  In  his  "Programme  du  cours  de  droit  des 
gens  fait  a  1 'Universite  de  Bruxelles,"  (1882),  Arntz  discusses 
intervention  (p.  69-84).  After  stating  that  non-intervention  in 
internal  affairs  is  the  rule  (p.  75),  he  gives  three  exceptions: 
(1)  treaty  stipulation;  (2)  when  the  institutions  are  a  menace; 
(3)  on  the  ground  of  humanity,  but  he  would  limit  the  latter  to 
collective  action  (p.  77-8). 

Rougier  (Rev.  Gen.  Vol.  17,  p.  473)  refers  to  this  passage  and 
states  that  Professor  Arntz  was  the  first  to  establish  the  theory 
of  intervention  on  the  ground  of  humanity,  but  Arntz  himself 
refers  to  Woolsey  as  having  previously  set  forth  his  views  (Pro- 
gramme du  cours  de  Droit  des  Gens  1882,  p.  78),  and  the  latter 
(Woolsey:  International  Law  1860,  p.  111-12)  quotes  from 
Wheaton's  Elements,  part  II,  Chap.  1,  §  10  Fedozzi  (archivio 
giuiridico,  Vol.  62,  1899,  p.  518)  says  Arntz  was  the  first  to 
attempt  to  find  a  juridical  basis  for  intervention.  This  ignores 
H.  von  Rotteck's  work  published  in  1845.  Arntz  also  refers  to 
Hall  as  holding  similar  views. 

Balance  of  Power. 

A  valuable  list  of  works  on  the  Balance  of  Powec  will  be  found 
in  the  Library  of  Congress:  List  of  References  on  (p.  49-57) 


470  INTERVENTION 

Europe   and   International  Politics,   1914.     L.   C.   card,   14-30010 
compiled  under  the  direction  of  Hermann  H.  B.  Moyer. 

A  few  of  the  more  important  works  dealing  with  this  par- 
ticular purpose  are: 

Donnandieu,  Leonce:   Essai  sur  In  theorie  de  I'SquUibre.    Paris, 
1900. 
9-3782  JX1318.D7 

Dupuis,  CJutrles,  1863:  Le  principe  d'equilibre.  Paris,  1909. 
9-27064  D217.D8 

Baldwin,  Simeon  E. 

The  limits  of  active  intervention  by  a  state  to 
secure  the  fulfilment  of  a  contract  in  favor  of  its 
own  citizens  entered  into  by  them  with  other 
states. 

in  28th  Report  of  the  International  Law  Asso- 
ciation, London,  1908,  p.  180f. 

Justifies  interposition  and  advocates  obligatory  arbitration  as 
a  substitute. 

Barrillon,  Francois  Guillaume. 

Politique  de  la  France  et  de  1'humanite  dans  le 
conflit  Americain. 
Paris,  1861.     40  p.,  25  cm. 

8-10496  E469.B27 

On  the  basis  of  humanity,  the  author  advises  France  to  take 
the  initiative  of  an  armed  and  collective  intervention  based,  first, 
upon  the  abolition  of  slavery  and  second,  upon  the  independence 
of  the  Confederate  States.  The  article  has  no  scientific  value. 

Bartholet. 

Du  droit  d 'intervention. 
1873. 

I  was  unable  to  consult  this  work.  It  is  cited  by  Geffcken 
(Heffter's  7  ed.),  $  44,  p.  107. 


BIBLIOGRAPHY  471 

Becherowsky. 

L 'intervention  et  la  peninsule  balkanique,  1892. 

I  was  unable  to  consult  this  work.  It  is  cited  by  E.  Robin: 
Occupations,  p.  281. 

Benton,  Elbert  Jay.    1871— 

International    Law    and    Diplomacy    of    the 
Spanish-American  War. 

Baltimore,  The  Johns  Hopkins  Press,  1908.  300 
p.,  20y2  cm.  (The  Albert  Shaw  lectures  on  diplo- 
matic history,  1907.) 

8-9495  E723.B47 

Discusses  the  various  grounds  upon  which  intervention  in  Cuba 
was  justified  and  gives  a  few  references  to  the  views  of  some  of 
the  authorities  (p.  81-108).  The  question  is  examined  in  a  broad 
and  fair  spirit,  but  the  treatment  is  superficial  and  indicates 
a  lack  of  comprehension  of  the  principles  of  international  law. 
The  historical  side  of  the  question  is  carefully  covered. 

****Bernard,  Mountague,  1820-1882.    [Chichele  Professor 
of  International  Law  and  Diplomacy,  Oxford.] 

On  the  Principle  of  Non-intervention.    A  lecture 
delivered  in  the  hall  of  All  Soul's  College. 
Oxford  and  London,  J.  H.  and  J.  Parker,  1860. 
Pamphlet,  1+36  p.,  23  cm. 

10-17439 1  JX4478.B5 

Prof.  Bernard  argues  that  intervention  in  internal  affairs  is  con- 
trary to  international  law.  The  argument  is  more  philosophical 
than  legal,  and  is  confined  to  a  consideration  of  intermeddling  in 
the  internal  affairs  of  another  state.  Interposition  and  counter- 
intervention  are  not  discussed.  Also  discusses  supervision  over 
smaller  states.  Bernard  counsels  absolute  nonintervention.  It  is 
one  of  the  ablest  works  on  the  subject,  and  has  exercised  a  very 
great  influence  on  other  writers  and  through  them  on  the  theory 
of  international  law  and  the  conduct  of  international  relations. 
Harcourt  [Historicus]  seems  to  have  been  influenced  and  later 
Hall,  Lawrence,  and  Oppenheim.  Bernard  was  one  of  few  Eng- 
lish writers  who  appear  to  have  been  familiar  with  the  German 
authorities,  and  the  only  one  who  had  given  the  subject  of  inter- 
vention serious  consideration.  He  gives  n  bibliography  of  in- 
tervention (p.  11). 


472  INTERVENTION 

•H-H-Berner 

Intervention  [article  on] 

in  Deutsches  Staats-Worterbuch  of  Blunt scUli,  and 
Brater,  Stuttgart  and  Leipsig,  1860.  Vol.  V.,  p. 
341-354. 

One  of  the  best  discussions  of  intervention.  Berner  recognizes 
the  general  principle  of  nonintervention,  but  admits  reasonable  ex- 
ceptions: balance  of  power;  continued  acts  of  inhumanity  ("In 
final  analysis,  Man  is  the  highest  right  before  which  all  other  right 
must  incline.");  counter-claim  [counter-intervention];  neces- 
sity. He  appends  a  valuable  bibliography,  which  we  have  utilized. 

Berra,  F.  A. 

Teorici  de  las  intervenciones. 
in  Neuva  Revista  de  Buenos-Ayres.     Vol  V.,  p. 
397-465. 

I  was  unable  to  consult  this  work. 

*Bignon,  Louis  Pierre  Edouard,  baron,  1771-1841 . 

Les  cabinets  et  les  peuples,  depuis  1815  jusqu'a 
la  fin  de  1822 ;  par  M.  Bignon. 
2d  ed.   (revised  and  corrected),  Paris.     Becliet 
aine,  1823. 

18-5011  D383.B5 

A  well-written  contemporaneous  attack  upon  the  arrogant  pre 
tensions  of  the  Holy  Alliance  to  interference  in  the  internal  af- 
fairs of  other  states.  Discusses  intervention  policy  of  the  powers 
toward  Italy,  Greece,  and  Spain.  Very  anglophobe  (p.  382)  ; 
criticizes  England  for  merely  proclaiming  the  doctrine  of  non- 
interference, and  not  trying  to  protect  the  states  against  interfer- 
ence. H.  v.  Botteck  (Einmischung,  p.  26)  cites  this  work  with  high 
praise. 

*Birkbeck,  W.,  Lt. 

The  principle  of  Non-intervention. 
No  date  or  place  of  publication  indicated.    4  p.,  8°. 

[in  New  York  Public  Library] 

Birkbeck  in  these  four  pages  shows  that  he  has  carefully  con- 
sidered part  of  the  subject.  He  emphasizes  the  need  of  definition 


BIBLIOGRAPHY  473 

of  the  terms  employed  (p.  4),  and  prefers  those  in  Abdy's  Kent. 
Strongly  defends  the  right  of  intervention  to  defend  the  law,  even 
when  national  interests  are  not  immediately  concerned. 

***Bluntschli,  Johann  Kaspar,  1808-1881. 

French  translation  entitled,  Le  droit  interna- 
tional codifie,  by  M.  C.  Lardy,  from  the  German 
edition  of  1868. 
Paris,  1870  and  1895. 

10-16547t  JX1268.B451895 

Louis  Kenault,  in  his  Introduction  to  the  Study  of  International 
Law,  says  it  is  one  of  the  few  books  which  must  always  be 
consulted.  This  statement  I  have  found  to  be  particularly  true 
for  intervention.  See:  Violations  of  international  law  and  the 
means  to  prevent  them,  §§  462-500,  p.  247-269.  I  have  also  used 
the  German  original. 

Bodin,  Jean,  1530-1596. 

Les  six  livres  de  la  republique  de  I.  Bodin 
Angeuin.  Ensemble  une  apologie  de  Rene 
Herpin. 

Paris,  I  du  Puis,  1583, 1060  p.,  18  cm.     First  pub. 
1576,  Latin  edition  De  republica  Libri  Sex,  1586. 

7-14933 

See  W.  A.  Dunning:  Political  Theories,  Vol.  I,  1910,  p.  86. 
Bodin  admitted  the  right  of  a  foreign  sovereign  to  intervene 
upon  humanitarian  grounds.  See  criticisms  of  this  doctrine  by 
Werdenhagen  (below  under  Werdenhagen). 

*Bompard,  Raoul. 

Le  Pape  et  le  droit  des  gens. 
Paris,  H.  Rousseau,  1888,  228  p.,  8°. 

[Harvard  Law  Library] 

Discusses  intervention  and  the  interest  and  rights  of  European 
states  in  the  affairs  of  the  Papal  states  (p.  109-127)  ;  gives  an 
account  of  the  various  interventions,  from  1796-1870,  which  have 
concerned  the  Papal  states  (p.  127-184).  This  work  is  important 
because  the  opinions  expressed  about  intervention  are  based  upon 
study  of  documents  and  the  practice  of  states,  even  though  the 
position  of  the  Pope  is  exceptional. 


474  INTERVENTION 

Borchard,  Edwin  M. 

The  Diplomatic  Protection  of  Citizens  Abroad, 
or  the  Law  of  International  Claims. 
New  York,  1915.     xxxvii+988  p.,  24y2  cm. 

15-1459  B,  Revised  JX4231.P8.B6 

The  best  work  on  interposition  for  the  redress  of  wrongs  to 
nationals — a  veritable  mine  of  information. 

Bourgeois,  J. 

Le  principe  de  non-intervention  a  propos  d'un 
livre  recent. 

in  Revue  general  de  droit  Internationale,  1897, 
Vol.  IV,  p.  746-757. 

JX.3.B56.vol.4 
This  is  really  a  review  of  a  book  on  the  French  Bevolution. 

Brewster,  Benjamin  Harris. 

Paper  furnished  by  the  Attorney-General,  in 
1883,  upon  the  subject  of  intervention  and  also 
upon  the  subject  of  the  Monroe  Doctrine. 
Washington,  Government  Printing  Office,  1884. 
8  p.,  8°. 

[New  York  Public  Library] 

This  is  not  important. 

Bringolf,  Hans. 

Volkerrechtliche  vertrage  als  quelle  von  inter- 
ventionen  bei  internationalen  verwickelungen. 
[Inaugural  dissertation,  Griefswald  University.] 
Grief swaLd,  J.  Abel,  1899, 1+47  p.,  8°. 

l-G-419  JX4481.B7 

British  State  Papers. 

1-4026  JX103.A3 

The   principal    collection   of   British   source   material:     treaties 
and  diplomatic  correspondence  with  all  other  states. 


BIBLIOGRAPHY  475 

Brocher  de  la  Flechere. 

Solidarite  et  souverainete. 

in  Revue  de  droit  international  et  de  legislation 
comparee,  1894,  vol.  26,  p.  415f. 

JX.3.K4.vol.26 

Not  important.  It  is  a  discussion  of  an  anonymous  book  on 
"  L 'intervention  et  la  peninsule  balkanique."  The  latter  is 
based  upon  the  nationalistic  ideas  of  Carnazza-Amari.  The  article 
criticizes  them  and  considers  intervention  in  Turkey  necessary 
because  Turkey  failed  to  live  up  to  her  obligations  and  en- 
dangered the  peace  of  Europe.  Quotes  Guizot:  "No  state  has 
the  right  to  intervene  except  when  its  own  safety  makes  it 
unavoidable. ' ' 

Callahan,  James  Morton,  1864— 

Cuba  and  International  Relations. 
1899. 

99-3745,   Revised.  F1783.C215 

See  below  under  Cuba,  1868-1878. 

Calvo,  Charles,  1824-1906. 

Le  droit  international. 

2  ed.  (1st  French  edition),  1870;  4th  ed.,  5  vols., 
1887-88;   a  supplementary  volume,  1896. 

10-15585  JX2984.D5  1896 

Intervention  is  discussed  in  vol.  I,  livre  III,  $$  107  ff.,  p.  264. 
Calvo  discusses  intervention  and  especially  the  interventions 
against  Argentina  and  Mexico.  Superficial  and  prejudiced  and 
not  always  reliable,  as  Calvo  is,  he  has  nevertheless  exercised  a 
considerable  influence.  This  may  be  in  part  due  to  the  easily 
read  French  which  he  has  chosen  as  his  medium  and  the  fact  of 
his  being  a  South  American  diplomatist.  He  was,  I  believe,  the 
first  to  publish  in  French  a  complete  treatise  upon  International 
Law  supported  by  a  comprehensive  discussion  of  the  incidents. 
The  interest  of  the  work  is  enhanced  by  means  of  carefully  chosen 
and  well  connected  extracts.  Unfortunately,  Calvo  does  not  give 
specific  references,  but  supplies  bibliographies  in  a  footnote  at 
the  end  of  each  section.  These  references  show  the  industry  and 
wide  reading  of  the  author,  and  facilitate  the  researches  of 
others.  I  have  found  one  or  two  valuable  references.  The  student 
of  the  principles  of  Intervention  need  expect  little  assistance 
from  Calvo. 


476  INTERVENTION 

Carnazza  Amari,  Giuseppe,  1837- 

Nouvel  expose  du  principe  de  non-intervention, 
in  Revue  du  droit  international  et  de  legislation 
comparee,  1873,  Vol.  V,  p.  352-389,  531-565.  (Book 
printed  with  same  title  in  Italian,  1873.) 

JX.3.R4,V.5 

Good  statement  of  the  views  of  the  Italian  nationalistic  school. 
Denies  legality  of  intervention  for  balance  of  power,  and  for 
humanity,  but  approves  when  it  is  to  help  national  independence 
[self-determination],  or  when  undertaken  against  intervention 
itself  [counter-intervention]. 

Carnazza  Amari,  Giuseppe,  1837— 

Nuova  esposizione  del  principio  del  non  inter- 
vento.  Discorso  inaugurate  pronunziato  dal 
professore  G.  Carnazza  Amari  per  1'apertura 
degli  studi  della  Regia  universita  di  Catania; 
anno  1872-1873. 

Catania,  Stabilimento  tipografico  Caronda,  1873, 
124  p.,  22y2  cm. 

11-12683  JX4481.C3 

See  French  edition    (preceding  item)    for  criticism  and  notes. 

Carnazza  Amari,  Giuseppe,  1837— 

Traite  de  droit  Internationale  public.     [Trans- 
lation from  Italian.] 
Paris,  1880. 

11-34126  JX2858.T4 

Vol.  I,  ch.  VI,  "Du  principe  de  non-intervention,"  p.  495-605, 
expresses  the  ideas  previously  published  in  his  ' '  Nuova  esposizione 
del  prineipio  del  non  intervento. ' ' 

Cass,  Lewis. 

Non-intervention. 

Reprint  of  speech  in  the  Senate,  Feb.  10,  1852. 
16  p.,  8°. 

[Boston  Public  Library] 

"Apropos  of  the  situation  in  Hungary.  Justifies  intervention 
and  discusses  the  consequences  and  principles  of  a  diplomatic 
protest  against  the  action  of  another  state. 


BIBLIOGRAPHY  477 

*Cavagliere,  Arrigo. 

L'intervento,  nella  sua  definizione   giuridica; 
saggio  di  diritto  internazionale. 
Bologna,  L.  Beltrami,  1913.     164  p.,  24y2  cm. 

14-17732  JX4481.C4 

After  Cavagliere  has  discussed  the  various  theories  in  regard 
to  the  juridical  basis  of  intervention  he  expresses  his  opinion 
against  the  legality  of  intervention  when  undertaken  by  a  single 
state  (p.  46-60).' 

When,  however,  the  particular  interests  of  the  individual  state 
are  of  vital  importance,  Cavagliere  thinks  the  right  to  defend 
them  on  the  ground  of  necessity  rests  upon  a  juridical  basis  and 
permits,  by  way  of  exception,  the  disregard  of  the  subjective 
rights  of  the  other  state  (p.  47-8).  For  the  protection  of  lesser 
interests  this  authority  considers  that  retorsions  may  be  em- 
ployed (p.  49).  But  he  recognized  the  right  of  the  collectivity  of 
states  to  intervene  for  the  protection  of  the  interests  of  all  the 
states.  The  remainder  of  the  study  (p.  60-164)  is  a  discussion 
of  collective  intervention. 

Cimbali,  Eduardo,  1862— 

II    non-intervento ;      studio    di    diritto    inter- 
nazionale universale. 
Rome,  1889.     275  p.,  8°. 

[Harvard  Law  Library 
Columbia  Law  Library] 

Follows  extreme  views  of  Italian  nationalistic  school.  Defends 
right  to  intervene  to  free  an  oppressed  nation  (p.  89).  This  he 
thinks  is  not  intervention,  because  he  defines  intervention  as  just 
such  an  oppression  of  a  people  of  another  race.  After  discussing 
intervention,  non-intervention,  and  the  two  together,  Cimbali  takes 
up  the  alleged  exceptions  which  justify  intervention  (p.  125-255) 
and  concludes  that  there  is  not  one  case  in  which  intervention  is 
justified  and  that  it  ought  always  to  be  condemned  (p.  261).  He 
states  this  view  as  follows:  "II  non-intervento,  dunque,  che 
constituise  la  pid  perfetta  e  scrupolosa  quarentegia  della  indi- 
pendenza  nazionale  dei  populi  e  un  diritto  assoluto  inviolabile" 
(p.  262). 


478  INTERVENTION 

**  Clark,  Joshua  Reuben,  Jr. 

Eight  to  protect  citizens  in  foreign  countries 
by  landing  forces.  Memorandum  by  the  Solicitor 
for  Department  of  State. 

[Washington,     Govt.     Printing     Office,     1912?} 
70  p.,  2Sy2  cm. 

13-35233  JX4175.U6 

The  appendix  contains  a  chronological  list  of  occasions  on 
which  the  Government  of  the  United  States  has  taken  action  by 
force  for  the  protection  of  American  interests,  including  certain 
instances  in  which  similar  action  has  been  taken  by  other  gov- 
ernments in  behalf  of  their  nationals. 

Discussion  of  grounds  of  intervention.  The  Solicitor  finds  that 
the  views  of  the  authorities  and  the  practice  of  states  justify, 
as  in  accord  with  the  principles  of  international  law,  the  use  of 
force  in  foreign  territory  when  necessary  to  the  protection  of  the 
lives  and  property  of  citizens.  Since,  he  argues,  international 
law  is  ipso  facto  a  part  of  our  law,  this  authorizes  the  executive 
to  use  force  for  this  purpose.  The  study  is  also  one  of  the  most 
complete  relative  to  the  views  of  the  authorities  as  to  grounds  of 
intervention  in  international  law.  It  is  one  of  the  most  important 
studies  of  intervention. 

*Cobbett,  Pitt. 

Cases  and  Opinions  on  International  Law. 
London,  1909,  vol.  I,  Peace;   1913,  vol.  II,  War 
and  Neutrality.    2  vols.,  22y2  cm. 

10-20525  Revised  JX68.C72 

Contains  illuminating  notes  to  the  accounts  of  the  incidents 
which  make  this  work  equally  valuable  as  a  commentary  or  as  a 
collection  of  cases.  The  analysis  of  every  question  upon  which 
this  keen  writer  touches  is  worthy  of  attention. 

•H-Condorcet,    Marie    Jean   Antoine    Nicholas    Caritat, 
Marquis  de 

Drafted  the  Statement  of  Motives  adopted  by 
the  French  Assembly,  September  22,  1792. 


BIBLIOGRAPHY  479 

Annual   Register,   1792,   vol.   34,   State   Papers, 

p.  263-272. 

17979-3  D2.A7 

In  this  Statement  of  Motives,  the  Assembly  justifies  its  treat- 
ment of  Louis  XVI,  and  blames  Austria  and  Prussia  for  viola- 
tions of  international  law  in  allowing  the  emigrants  to  make 
hostile  preparations  within  their  territory  (p.  264).  They  also 
blamed  Austria  for  violating  the  treaty  of  alliance,  and  signing 
a  contradictory  treaty  with  Prussia  in  an  attempt  to  separate 
the  king  from  the  French  people  and  to  war  upon  the  latter. 
"Never,"  the  statement  declares,  "did  hostilities  more  really 
justify  war,  and  to  declare  it  was  to  repel  it"  (p.  265).  Lingel- 
bach  (Intervention  in  Europe,  p.  11)  says:  "This  document 
formulates  the  principle  of  non-intervention  [non-interference] 
on  political  grounds,  and  stands  in  strong  contrast  to  the  practice 
of  Europe  during  this  period." 

Conrotte,  Manuel. 

La  intervencion  de  Espana  en  la  independencia 
de  los  Estados  Unidos  de  la  America  del  Norte. 
Madrid,  v.  Sudrez,  1920.     2986  p.,  23y2  cm. 

20-22891  E249.C73 

I  have  not  examined  this  book. 

Constant  de  Rebecque,   Henri  Benjamin,   1767-1830. 
[Benjamin  Constant.] 

L 'esprit  de  conquete. 

Paris,  1813.  Reedited  with  a  preface  by  Albert 
Thomas,  Paris,  Libraire  Grasset,  61  rue  des  Saint- 
Peres,  1918,  62  p.,  17y2  cm. 

20-1196  JC381.C72 

Cox,  Isaac  Joslin. 

American  Intervention  in  Florida, 
in  American  Historical  Review,  January,  1912, 
p.  290-311. 

This  article  is  historical  and  does  not  enter  into  consideration 
of  legal  principles. 


480  INTERVENTION 

Cox,  Isaac  Joslin. 

The    Mexican    Problem:     Self -Help   or   Inter- 
vention. 

in  Political  Science  Quarterly,  June,  1921,  vol.  36, 
p.  226- 

Does  not  discuss  principles  of  intervention. 

Crawford,  Price  W.  H. 

The  intervention  of  Bulgaria  and  the  Central 
Macedonian  Question. 
London,  1915. 

[in  Naval  War  College  Library] 

Does  not  discuss  or  concern  the  principles  of  intervention. 
5-26345  JX2514.F5 

****  Creasy,  Sir  Edward  Shepard,  1812-1878. 

First  Platform  of  International  Law. 
London,  1876,  XV+710  p.,  23  cm. 

Chapter  IX  (p.  278-359),  deals  mainly  with  interposition,  inter- 
vention, and  interference.  Creasy,  in  his  discussion  of  these 
questions,  is  broad  of  view,  and  shows  a  thorough  study  of  the 
authorities,  but  he  is  not  so  sure  nor  so  profound  as  Westlake. 
Nevertheless,  his  study  is  illuminating  and  one  of  the  best  in 
English. 

Cuba,  1851-1854. 

The  diplomatic  correspondence  between  the  United  States  and 
Great  Britain  and  France  is  of  great  importance  from  a  juridical 
point  of  view.  It  relates  to  conquest,  counter-intervention,  inter- 
national police,  international  cooperation,  self-help,  collective  in- 
tervention, and  the  Monroe  Doctrine.  See  also  SouU  Pierre. 
Many  important  documents  will  be  found  in  Moore's  Digest,  Vol. 
VI,  $  906,  p.  56-60. 

Cuban  Insurrection,  1868-1878. 

The  Diplomatic  Correspondence  of  the  United  States  is  im- 
portant as  relating  to  humanitarian  intervention.  See  Moore 's 
Digest,  Vol.  VI,  $  907,  p.  61-105. 

CaUahan,  James  M.:  Cuba  and  International  relations,  1899 
[is  mainly  devoted  to  the  diplomatic  history  of  the  insurrection 


BIBLIOGRAPHY  481 

of  1868-78.    Chap.  XIII  is  entitled :  ' '  Ten  years  war — steps  toward 
intervention,"  p.  412-52,  but  does  not  discuss  the  principles  and 
the   right   of   humanitarian   intervention.      The    same    is   true    of 
Chap.  XIV  relative  to  intervention  in  1898.] 
99-3745  Kevised  F1783.C215 

Latane,  John  H.:  Intervention  of  the  United  States  in  Cuba 
in  North  American  Review,  March,  1898,  p.  350-61  [This  article 
relates  entirely  to  the  insurrection  of  1868-78,  gives  an  account 
of  Secretary  Fish's  threat  of  intervention  on  the  ground  of 
humanity  and  protracted  struggle  and  relates  how  he  attempted 
to  secure  cooperation  of  Great  Britain  without  success.  This 
negotiation  was  kept  secret  20  years  till  published  as  a  Con- 
gressional document.] 

See  also   Curtis,   George   Tichnor:    The  case  of  the    Virginius 
considered  with   reference   to   the   law   of   defense,    1874.     [This 
was  an  incident  of  the  insurrection.] 
11-25163  F1785.C91) 

The  Library  of  Congress  lists,  Butler,  B.  F. :    Speech  in  the 
House  of  Eepresentatives,  June  15,  1870. 
9-28807  F1785.B98 

Cuban  Insurrection,  1895-1898. 

One  of  the  most  important  instances  of  humanitarian  inter- 
vention. The  intervention  of  the  United  States  has  been  unjustly 
criticized  by  many  writers  or  inaccurately  justified  upon  the 
ground  of  removal  of  a  nuisance.  See  discussion  in  text  under 
§  8. 

For  diplomatic  correspondence,  see  Moore 's  Digest,  Vol.  VI, 
§  908,  909,  p.  105-236.  See  also  under  Benton;  Falck,  H.  E.; 
Fedozzi;  Hershey;  Hengstler;  Institute  de  Droit  International; 
Phelps;  Le  Fur;  Phelps;  Quesada;  Woolsey,  T.  S. 

Barrows,  Samuel  June:    Intervention  for  Peace,  Freedom,  and 
Humanity,  Speech  in  House  of  Representatives,  April  28,   1898, 
13  p.  8°. 
1-4892. 

Becarra,   Eicardo:    Cuestion   palpitante;     un   poco   de  historia 
a   proposito   de   la   independencia   de   Cuba   y   Puerto   Rico,   y   la 
doctrina  Monroe  y  la  intervencion  norte-americana   en   Cuba .... 
Caracas,  1898. 
9-21914  F1786.B38 

Butler,  Charles  Henry:    Intervention  the  proper  course. 
12-5427  E721.B98 

31 


482  INTERVENTION 

Denby,  Charles:  The  doctrine  of  intervention  (in  The  Forum, 
Vol.  XXVI,  p.  385-92)  [merely  advocates  protection  of  Amer- 
ican interests  and  prophesies  annexation  of  Cuba — of  no  scientific 
value]. 

Vesjardins,  Arthur:  L 'insurrection  Cubane  et  le  droit  des  gens 
in  I!,  rut  de  Paris  July  15,  1896,  Vol.  4,  p.  347-383  condemns  the 
action  of  the  United  States  as  a  violator  of  international  law  and 
thinks  the  purpose  is  to  secure  the  annexation  of  Cuba. 

Gmteras,  John:  The  United  States  and  Cuba;  a  review  of 
documents  relating  to  the  intervention  of  the  United  States  in 
the  affairs  of  Spanish- American  colonies,  Philadelphia,  1895,  18  p. 
6-27946  F1786.G97 

Robinson,   Albert   Gardner:     Cuba   and   the   intervention,   New 
York,  1905,  359  p. 
5-7752  F1786.E66 

Washburn,  William  Drew,  Jr.:  Cuba  and  Spain.  Our  plain 
duty.  Minneapolis,  1898,  8  p. 

[in  Boston  Public  Library] 

*  Curtis,  George  Ticknor,  1812-1894. 

The  case  of  the  Virginius  considered  with  ref- 
erence to  the  law  of  self-defense. 
New  York,  1874,  40  p.,  23y2  cm. 

11-25163  F1785.C99 

Important  because  this  was  one  of  the  first  works  to  recognize 
the  principles  of  self-help  involved  in  the  Virginius  controversy. 

*  Curtis,  Roy  Emerson 

The  Law  of  Hostile  Expeditions, 
in  American  Journal  of  International  Law,  1912, 
vol.  8,  p.  1-37,  224-255. 

A  scholarly  examination  of  this  phase  of  what  we  have  called 
self-help,  with  references  to  the  precedents  in  American  diplo- 
matic history. 

[Davenant,  Charles.]     1656-1714. 

Essays  upon :  I.  The  balance  of  power.    II.  The 
right  of  making  war,  peace,  and  alliances.    IIL 


BIBLIOGRAPHY  483 

Universal    monarchy.      To    which    is    added    an 
appendix  containing  the  records  referred  to  in 
the  second  essay. 
London,  1701. 

7-10865  H33.D25   [vol.  4] 

Decimus  [pseudonym], 

Intervention  and  its  fruits;   a  letter  addressed 
to  Her  Majesty's  Secretary  of  State  for  Foreign 
Affairs. 
London,  Sounders  and  Otley,  1841.    32  p. 

[New  York  Public  Library] 

Decimus 's  interestingly  written  attack  upon  Palmerston's  policy 
regarding  Turkey  advises  the  government  to  hold  aloof  and  let 
Russia  occupy  Dardenelles  and  France,  Egypt.  Defends  policy 
of  complete  non-intervention. 

***  Dickinson,  Edwin  De  Witt,  1887— 

The  Equality  of  States  in  International  Law. 
Cambridge,  Harvard  University  Press,  1920. 
xiii-\-424  p.,  23  cm. 

21-99  JX4003.D5 

Dickinson,  Goldsworthy  Lowes. 

Causes  of  International  War. 
London,  The  Swarthmore  Press,  Ltd.;  New  York, 
Harcourt,  Brace  and  Howe,  1920.  110  p.,  18y2  cm. 

20-22614  JX1952.D53 

I  have  not  consulted  this  book. 

Diplomatic  Correspondence  of  the  United  States.   Sec 
Foreign  Relations. 

Doane,  George  Washington,  bp.,  1799-1859. 

Influence,  without  Intervention;    the  Duty  of 
our  Nation  to  the  World :  the  oration,  at  Burling- 


484  INTERVENTION 

ton  College,  on  the  seventy-sixth  anniversary  of 
American  independence,  and  sixth,  of  the  found- 
ing of  the  college,  July  5,  MDCCCLII: 
Burlington,  N.  J.,  J.  Rodgers,  1852. 

19-3099  E286.B9G 

Defends  the  policy  of  non-intervention  against  the  popular 
sentiment  of  that  period. 

Ducrocq,  Louis. 

Represailles  en  temps  de  paix ;  blocus  pacifique, 
suivi  d'une  etude  sur  les  affaires  de  Chine  (1900- 
1901)  [These,  University  de  Paris]. 
Paris,  Pedone,  1901,  237  p.,  25  cm. 

6-40438  JX4471.D8 

This  work  although  it  discusses  the  means  for  carrying  out 
intervention,  is  also  important  for  study  of  the  grounds  of  inter- 
vention. 

Dunn,  Arthur  Wallace. 

Uncle  Sam  on  Police  Duty, 
in  American  Revieiv  of  Reviews,  April,  1911,  vol. 

43,  p.  462-5. 

AP2.R4V.43 

A  popular  and  interesting  article  showing  the  role  of  the 
United  States  in  policing  the  Americas. 

•H-Dupuis,  Charles,  1863— 

Le  principe  d'equilibre  et  la  concert  Europeen 
de  la  paix  de  Westphalie  a  1'acte  d'Algesiras. 
Paris,  Perrin  et  cie,  1909,  525  p.,  23  cm. 

9-27064  D217.D8 

A  remarkable  study  of  the  Balance  of  Power,  which  should 
not  be  overlooked.  The  author  is  known  as  a  scholar  whose 
erudition  is  balanced  by  his  sense  of  the  necessities  of  practical 
politics. 


BIBLIOGRAPHY  485 

Elmore,  Alberto  A. 

Ensayo  sobre  la  doctrina  de  la  intervencion 
internacional. 

Lima,  Impr.  de  "El  Comercio,"  1896.       52  p., 
20y2  cm. 

16-11357  JX4481.E4 

Engelhardt,  E. 

Le  droit  d 'intervention  et  la  Turquie. 
in  Revue  de  droit  international  et  de  legislation 
comparee,  1880,  vol.  12,  p.   363-388.     Reprinted 
Paris,  1880,  64  p.,  8°. 

10-31105  JX3.E.56   Vol.    12 

[Reprint  in  Harvard  Law  Library] 

Engelhardt  recognizes  the  right  to  intervene  to  abolish  the 
slave  trade  (p.  10).  Restrictions  upon  sovereignty  (p.  11). 
Studies  the  nature  of  the  various  interventions  in  Turkey,  espe- 
cially since  1856  (p.  13f),  and  concludes  (p.  61)  that  Turkey  is 
under  the  guardianship  of  the  principal  European  powers.  ' '  C  'est 
a  dire  qu'elle  est  en  tutelle  [Depeche  du  due  Decazes  du  10 
Janvier,  1876]  et  que  la  surveillance  journaliere  dont  elle  est 
1  'objet  dans  ses  affaires  interieures  a  reduit  a  peu  pres  a  neant 
son  autorite  souveraine. ' '  [Depeches  de  Lord  Derby  du  14 
Juillet  et  du  27  Septembre.] 

*Esmein,  Adhemar,  1848— 

La  theorie  de  1 'intervention  international  chez 
quelques  publicistes  francais  du  XVIe  siecle. 
in  Nouvelle  revue  historique,  de  droit  francais  et 
etranger,  vol.  24,  p.  549-574. 

[New  York  Public  Library, 
Harvard  Law  Library] 

Falck,  Horace  Edgar,  1879— 

Diplomatic   Relations   Preceding-   the   War  of 

1898. 


486  INTERVENTION 

in  Johns  Hopkins  University  Studies  in  History 
and  Political  Science,  Series  XXIV,  Nos.  1-2, 1906. 
95  p. 

6-10943  H31.56  Vol.  24 

This  is  really  a  study  of  American  intervention  in  Cuba.  It 
first  sets  forth  views  of  authorities — some  of  the  most  weighty 
being  omitted — then  analyzes  the  various  grounds  upon  which 
intervention  in  Cuba  was  justified:  destruction  of  the  Maine; 
injury  to  commerce;  self-preservation;  .  protection  of  property 
an3  lives  of  American  citizens  in  Cuba;  humanity;  and  reaches 
the  conclusion  that  the  circumstances  did  not  justify  intervention 
on  any  of  these  grounds. 

**Falcke,  Horst  P. 

Le  blocus  pacifique authorized  translation 

of  German  by  Ant.  Contat, 

Leipszig,  1919,  Rossbergsche  Verlagsbuch  hand- 
lung  [1st  German  edition,  1891.] 

A19-1536 

[Not  in  Library  of  Congress. 
In  Carnegie  Endowment  Library] 

Is  a  work  of  first  importance,  as  the  author  gives  carefully 
prepared  accounts  of  many  important  incidents. 

•H-Fedozzi,  Prospero,  1872— 

Saggio  sul  intervento. 

Separately  bound  extract  from,  Archivio  giuri- 
dico,  1899,  Vol.  62,  New  Series,  Vol.  3,  p.  3-46; 
247-280. 

[In  Library  of  Congress,  Law  Periodicals] 

Divides  his  study  into  two  parts:  (I)  the  psychological  and 
philosophical  bases  of  intervention;  and  (II)  the  juridical  founda- 
tions for  intervention.  He  considers  that  nations  fight  for  ideas, 
and  that  by  intervention  they  extend  the  beliefs  they  cherish. 
As  examples,  he  discusses  the  propaganda  of  the  Revolution. 
The  Cuban  intervention,  he  considers  was  for  the  United  States 
a  matter  of  civilization  and  not  economics.  In  Part  II,  he 
analyzes  the  classes  of  instances  of  intervention  and  the  judicial 
nature  of  each  category.  He  gives  an  interesting  explanation 


BIBLIOGRAPHY  487 

of  the  errors  into  which  the  nationalist  school  of  Italy  has  fallen, 
particularly  Carnazza  Amari.  The  study  shows  much  research, 
acumen,  and  fairness,  and  is  clearly  expressed,  but  the  author 
appears  to  ignore  some  of  the  most  important  works,  especially 
those  in  English  and  German. 

Fievee,  J. 

De  1'Espagne,  et  des  consequences  de  1 'inter- 
vention armee. 
3  ed.,  Paris,  1823,  8°. 

[Peace  Palace  Library] 

I  was  unable  to  consult  this  work. 

*F16ckher,  Adolph  von,  1867— 

Les  consequences  de  1 'intervention, 
in  Revue  generate  de  droit  Internationale  public, 
1896,  vol.  3,  p.  329-333. 
10-31105  JX3.K56,  Vol.  3 

Explains  (p.  329-331)  that  force  is  the  means  of  carrying  out 
an  intervention  and  distinguishes  between  the  justice  of  an  inter- 
vention and  the  means  to  carry  it  out.  Eefutes  the  doctrine  of 
Heilborn  that  there  is  no  need  of  a  just  cause  of  war,  and  there- 
fore no  need  of  a  just  cause  for  intervention.  Discusses  (p.  332- 
333)  the  just  limits  of  the  terms  of  peace.  He  thinks  a  state 
has  a  right  to  make  war  to  defend  legitimate  interests  and  goes 
so  far  as  to  permit  it  to  make  wrar  to  secure  new  advantages 
indispensable  for  the  development  of  the  State,  and  thinks  "such 
action  is  in  the  nature  of  a  veritable  necessity"  (p.  333).  Not- 
withstanding the  injustice  of  an  abuse  of  force,  the  author 
recognizes  that  new  rights  arise  from  the  treaty  of  peace. 

•H'Flockher,  Adolph  von,  1867— 

De  1 'intervention  en  droit  international. 
Paris,  A.  Pedone,  1896.     70  p.,  25  cm. 

9-8132  JX4481.F6 

This  is  a  valuable  discussion  of  intervention  in  which  the 
author  brings  out  certain  characteristics  of  the  use  of  force  in 
international  relations,  but  is  not  able  entirely  to  free  himself 
from  the  existing  confusion  in  regard  to  the  use  of  terms.  He 
defines  intervention  objectively  as  a  mixing  by  one  government 


488  INTERVENTION 

in  the  affairs  of  another  for  the  purpose  of  imposing  its  will. 
Yet  further  on,  Flockher  restricts  intervention  in  cases  where 
force  is  used  for  the  protection  of  interests.  (Cf.  Berner,  p.  341.) 
The  book  is  especially  valuable  because  the  author  has  carefully 
examined  the  German  authorities,  Geffcken,  Heilborn,  Strauch, 
and  others. 

Foelix. 

Intervention     d'un     etat     dans     les     affaires 
interieures  d'un  autre.     [A  review  of  Wheaton's 
Elements  of  International  Law.] 
in  Revue  de  droit  francais  et  etranger,  1837,  vol. 
4,  p.  161-179. 

[In  Harvard  Law  Library] 

Foelix  praises  Wheaton  for  including  a  study  of  questions 
previously  passed  over  in  silence,  and  especially  the  intervention 
of  a  state  in  the  internal  affairs  of  another  state.  This  review  is 
not  important  from  a  scientific  point  of  view. 

Foreign  Relations  of  the  United  States. 

10-3793  JX233.A3 

This  official  publication  of  the  Government  continuing  the 
Diplomatic  Correspondence  1861-1913  contains  selected  portions 
of  the  correspondence  with  foreign  governments.  It  is  a  most 
valuable  source  of  information,  especially  in  the  earlier  years 
when  more  important  material  was  made  public.  There  is  an 
index  volume  up  to  1899.  The  Index,  prepared  by  Miss  Adelaide 
Hasse,  of  a  portion  of  the  material  prior  to  the  Diplomatic 
Correspondence  (1861)  is  valuable. 

Frankfurter,    Felix,    [Professor    of    Law,    Harvard 
University]. 

Haiti  and  Intervention, 
in  The  New  Republic,  December  15,  1920,  p.  71-2. 

A  well  written,  brief  comment  on  the  intervention  of  the  United 
States  in  Haiti,  1915-20.  Professor  Frankfurter  admits  the  im- 
possibility of  absolute  non-intervention  and  advocates  making 
intervention  of  the  United  States  in  other  American  States  sub- 
ject to  the  control  of  a  pan-American  council. 


BIBLIOGRAPHY  489 

*** Fugitive  Slaves. 

Report  of  the  Royal  Commission  on  the  Sur- 
render of  Fugitive  Slaves. 
Parliamentary  Papers,  1876,  vol.  28,  [c-1516-I]. 

Most  valuable  for  the  study  of  the  basic  principles  of 
humanitarian  intervention. 

**Geffcken,  Friedrich  Heinrich,  1830-1896. 

Das  Recht  der  Intervention. 
Hamburg,  1887.     50  p.,  24  cm. 
Reprint  of  his  article  in  Holtzendorff  's  Handbuch, 
Vol.  4,  p.  131-168. 

9-3625  JX4481.G4 

Gericke,  Josef  Lodewijk  Hendrik  Alfred. 

De  jure  interventionis  ante  rerum  conversionem 
in  Gallia  usurpato.  [Inaugural  dissertation, 
Leyden.] 

Lugduni  Batavorum,  C.  C.  vander  Hoek,  1834. 
iv.+149  p.,  22  cm. 

10-17441t  JX4478.G5 

Gover,  John  M. 

Notes  of  Intervention  [Interposition], 
in  Law  Magazine  and  Review,  1894-1895,  vol.  20. 
[in  Library  of  Congress,  Law  Periodicals] 

Not  important. 

Greece,  1827 

The  intervention  of  the  powers  in  support  of  the  Greek  insur- 
gents was  mainly  upon  the  ground  of  humanity.  Of  the  numer- 
ous works  we  only  refer  to  the  following.  Almost  every  writer 
on  international  law  or  European  history  discusses  this  incident. 

Phillips,  Walter  Alison:  The  War  of  Greek  independence. 
New  York  1897. 

4-17CG913  BF.805.P58 


490  INTERVENTION 

•H-H-Grotius,  Hugo,  1583-1645. 

De  jure  belli  et  pacis . . .  accompanied  by  an 
abridged  translation,  by  William  Whewell. 
London,  J.  W.  Parker,  1853.    3  vols.,  22  cm. 

8-36441  JX2093.E5 1853 

The  original  edition  published  in  1625  will  be  found  in  the 
Harvard  Law  Library. 

*Guizot,  Francois  Pierre  Guillaume,  1787-1874. 

Memoires  pour  servir  a  Phistoire  de  mon  temps. 
Paris,  Michel  Levy  Freres.  1858-67.  8  vols., 
2iy2  cm. 

9-20829  DC255.G8A2 

Since  Guizot  directed  the  foreign  policy  of  France  for  a  con- 
siderable period  and  was  responsible  for  some  of  the  most  in- 
excusable instances  of  interference  his  excuses  and  reflections 
are  of  particular  interest,  quite  apart  from  Guizot's  real  merit 
as  a  writer. 

•K-frGriinther,  Karl  Gottlob 

Europaisches  Volkerrecht. 

Altenburg,  Richterschen  Buckhandhung,  Vol.  I, 
1787,  Vol.  II,  1792. 

JX23H.E8 

This  is  one  of  the  most  scientific  and  most  practical  of  the  text 
books  upon  international  law,  and  a  proof  is  the  careful  con- 
sideration of  intervention.  Giinther  like  Grotius  recognizes  the 
obligation  to  intervene  in  support  of  the  law  (I:  296)  and  in 
general  emphasizes  the  superior  right  of  the  society  of  states  over 
the  rights  of  the  separate  nations  (Vol.  I,  p.  296,  282;  Vol.  II, 
p.  289,  note  ( e) ) .  Upon  this  basis  he  recognizes  the  right  of  transit 
(Vol.  II,  p.  224-6)  and  also  the  right  of  action  to  preserve  the 
balance  of  power  (Vol.  I,  p.  322,  333,  358,  359,  360,  365).  Par- 
ticularly brilliant  is  his  answer  to  the  objections  raised  against 
the  balance  of  power  (Vol.  I,  p.  370-2).  To  the  balance  of  power 
he  devotes  many  pages  (Vol.  I,  p.  321-389).  In  several  places 
he  seems  to  support  action  upon  humanitarian  grounds  (Vol.  II, 
p.  333,  334,  335,  note  (g),  286),  but  he  does  not  justify  the  use 
of  force  for  this  purpose.  Giinther  repeatedly  and  emphatically 
asserts  the  right  of  every  independent  state  to  settle  its  govern- 


BIBLIOGRAPHY  491 

mental  and  other  internal  affairs  without  interference  (Vol.  I, 
p.  280,  284-7,  293-4;  Vol.  II,  p.  368-9,  373-9,  395,  400-4,  407-13, 
417-18,  436).  But  he  declares:  "a  due  regard  for  the  ties  of 
international  fellowship  requires  that  in  as  far  as  possible  all 
direct  damage  to  other  nations  should  be  avoided  and  all  that 
constitutes  a  continuing  danger  or  cause  for  apprehension  re- 
moved." (Vol.  I,  p.  289.)  He  recognizes  the  now  discarded 
right  to  insist  upon  treaty  rights  of  succession  (Vol.  II,  p.  393) 
and  in  general  fails  fully  to  perceive  the  limits  of  the  rights 
which  treaties  of  guaranty  can  give  (Vol.  II,  p.  379-8;  cf.  Vol.  I, 
p.  287-8;  Vol.  II,  p.  381,  note  (&;).  But  he  sees  that  interfer- 
ence in  a  civil  strife  is  only  permissible  when  both  sides  request 
it  (Vol.  I,  p.  288,  but  cf.,  p.  287). 

Giinther  appears  to  recognize  the  executive  and  directing  control 
of  the  great  states  acting  for  the  maintenance  of  peace  and  the 
protection  of  their  common  interests  (Vol.  I,  p.  295-6).  We 
should  also  note  his  painstaking  efforts  to  establish  some  limit 
upon  treacherous  and  abusive  military  preparations  by  recog- 
nizing a  right  to  demand  explanations  (Vol.  I,  p.  289-313). 

Giinther  is  rich  in  bibliographical  notes  and  references  to  the 
incidents  of  practice  upon  which  as  a  follower  of  the  positive 
school  he  builds  his  system.  On  the  whole  it  is  one  of  the  best 
studies  and  deserves  to  be  consulted  by  all  investigators. 

***Hall,  William  Edward,  1836-1894. 

International  Law. 

London,  1880.    4  ed.  [containing  last  corrections 
of  the  author],  London,  1895. 

3-23670  JX2524.T7   1895 

$§  83-95  relate  to  intervention.  The  value  of  Hall's  work  is 
too  well  known  to  require  comment.  His  is  one  of  the  best  dis- 
cussions of  the  subject  in  a  general  text-book,  but  is  not  free 
from  inconsistencies,  perhaps  in  part  due  to  national  bias  and 
the  effort  to  justify  British  policy  on  a  basis  of  juridical  prin- 
ciples. He  pushes  to  an  extreme  the  doctrine  of  necessity,  and 
minimizes  the  right  of  humanitarian  intervention.  I  have  used 
the  4  ed.  Later  editions,  even  that  of  A.  Pearce  Higgins  (7  ed., 
London,  1917),  do  not  amplify  the  discussion  of  intervention. 
Happily  Higgins  has  reverted  to  Hall's  arrangement  by  sections, 
which  Attlay  had  abandoned. 


492  INTERVENTION 

***Halleck,  Henry  Wager,  1815-1872. 

International  Law. 
New  York,  1861. 

3-32038  JX2475.16.1861 

Intervention  is  discussed,  pp.  81-97,  289-334.  Valuable  because 
of  the  practical  and  original  treatment  and  full  references  to 
authorities.  The  views  expressed  sixty  years  ago  are  more  in 
accord  with  present  opinion  than  those  of  many  later  writers. 

***  Harcourt,    Sir   William   George   Granville    Venables 
Vernon,  1827-1904. 

[Published  under  pseudonym  "Historicus".] 
Letters  on  some  questions  of  international  law. 
Eeprinted  from  the  Times  with  considerable  ad- 
ditions. 

London  and  Cambridge,  Macmillan  &  Co.,  1863. 
xmi-\-212  p.,  22  cm. 

10-19738  JX4521.H3 

Under  a  pseudonym,  Sir  Vernon  Harcourt,  in  his  well-known 
letters  of  "  Historicus, "  reprinted  from  letters  that  appeared 
in  the  London  Times,  discusses  various  problems  of  neutrality 
raised  by  the  Civil  War.  Amongst  those  considered  are  prema 
ture  recognition  and  the  obligation  of  non-intervention  [non 
interference].  In  a  preface  the  author  refers  to  his  discussion 
of  the  international  doctrine  of  recognition  as  "the  only  parts 
of  this  publication  which  attempts  anything  like  original  investi- 
gation" and  the  result  is  a  real  contribution  upon  which  suc- 
ceeding writers  have  largely  relied.  Sir  Vernon  Harcourt  says  of 
the  letter  on  intervention  that  it  is  of  "rather  a  political  than  a 
juridical  cast. ' '  We  might  add  that  he  has  confined  his  discussion 
to  the  political  instances  of  interference  rather  than  to  juridical 
intervention.  If  we  bear  in  mind  that  his  generalizations  apply 
mainly  to  instances  of  political  interference  in  the  internal  affairs 
of  other  states,  his  valuable  discussion  of  this  phase  of  the 
subject  will  prove  of  great  assistance.  He  does  not  take  up 
interposition  for  the  protection  of,  the  rights  of  nationals  under 
international  law  nor  collective  intervention  to  vindicate  the 
law.  If  other  authors  who  have  discussed  the  whole  range  of 
intervention  had  been  equally  searching  in  their  analysis,  we 
should  not  find  the  subject  in  its  present  chaotic  condition,  but 
unfortunately,  many  of  the  authorities  have  applied  Sir  Vernon 


BIBLIOGRAPHY  493 

Harcourt  's  generalizations  intended  to  apply  only  to  interference 
in  international  affairs  to  all  phases  of  intervention  without 
sufficient  discrimination.  The  three  letters  on  recognition,  pp. 
1-37,- and  the  letter  on  "The  perils  of  intervention,"  pp.  39-51, 
is  as  has  been  said  the  portion  of  interest  for  the  study  of 
intervention. 

[Harris,  Norman  Dwight,  1870 — ] 

Intervention  and  Colonization  in  Africa. 
Boston,  1914. 

15-1468  DT31.H3 

Does  not   discuss   or  bear  upon  the  principles   of  intervention. 

Hautefeuille,  Laurent  Basile,  1805-1875. 

Le  principe  de  non-intervention  et  ses  appli- 
cations. 

Paris,  1863,  67  p.,  8° .  What  appears  to  be  the 
same  article  was  printed  in  the  Revue  Conteni- 
poraine,  July  31, 1863, 2nd  series,  vol.  34,  p.  211. 

{in  New  York  Bar  Association  Library, 
Boston  Public,  and  Boston  Athenaeum] 

In  the  form  of  a  scientific  study  of  the  principles  of  non- 
intervention, this  is  really  a  clever  apology  for  Louis  Napoleon's 
failure  to  intervene  effectively  in  Poland.  Hautefeille  attempts 
to  justify  as  a  proper  instance  of  permissible  diplomatic  inter- 
vention the  offers  of  mediation  so  called  between  the  North  and 
the  South  then  in  Civil  War.  (Cf.  the  biting  satire  with  which 
"Historicus"  ridicules  Napoleon's  suggestions.)  This  pamphlet 
must  be  considered  either  insincere  or  prejudiced  to  an  unusual 
degree,  but  for  the  well-informed  reader  it  contains  much  which 
is  entertaining  and  something  also  of  value. 

For  instance,  the  criticism  of  the  essential  interests  as  a 
justification  for  interference  (p.  48)  and  (p.  53)  his  characteriza- 
tion of  the  treaty  of  February  8,  1863,  as  an  actual  intervention 
[interference]  in  the  Polish  question;  p.  54  he  makes  some  wise 
reflections  about  the  importance  of  secret  counsels  or  repre- 
sentations. 

***Heffter,  August  Wilhelm,  1796-1880.     [Professor  of 
Law,  Berlin  University.] 


494  INTERVENTION 

Das  Europaische  Volkerrecht  der  Gegenwart— 
aus  den  bisherigen  Grundlagen. 
1st  edition,  1844,  translated  into  French  by  Berg- 
son,    Paris,    1857.     After    the    author's    death, 
Geffcken  prepared  3  more  editions.     The  edition, 
Berlin,  1881,  adds  nothing  to  the  text  of  the  4th 
edition,  1861,  relative  to  intervention  (§§  44-46) 
except  a  note  p.  109. 

20-3758  [2  edition]  JX2787.E3.1843 

This  is  one  of  the  best  text-books  to  consult  upon  the  subject 
(See  $$  44f).  The  list  of  references  in  the  notes  shows  careful 
study.  Geffcken 's  note  (7  ed.,  p.  109)  criticizes  Heffter's  state- 
ment of  the  right  to  intervene  to  end  or  to  forestall  civil  wars. 

***  Heiberg,  Dr. 

Das   Princip   der   Nichtintervention   in   seiner 
Beziehung  auf  die  aussere  and  inner  organisation 
des  Staats. 
Leipzig,  Otto  Wigand,  1842. 

[Columbia  Law  Library] 

Heiberg  sees  in  the  revolution  of  1830  the  triumph  of  the 
principle  of  non-intervention  [non-interference]  giving  expres- 
sion to  the  rights  of  peoples  as  opposed  to  the  former  principle 
of  intervention  [interference]  (pp.  3-11). 

He  goes  on  to  discuss  the  principle  of  non-intervention  [non- 
interference], which  he  finds  alone  can  allow  each  people  the 
freedom  necessary  to  conform  to  the  law  of  nature.  He  asserts 
that  man  is  capable  of  this  adjustment,  since  man  has  life  and 
movement  as  part  of  an  ever  developing  nature,  or  the  ^ver 
creating  spirit  (p.  12). 

In  reference  to  intervention  for  humanity,  Heiberg  says:  The 
foundation  of  all  civilized  states  is  the  higher  union  which  is 
attained  through  the  maintenance  of  general  peace  and  through 
the  development  of  the  social  conditions  [Kulturzustandt]  of  the 
peoples.  "When  these  actual  cosmopolitan  interests,  which  rest 
upon  assured  rights  and  reciprocally  recognized  principles,  are 
endangered  and  ignored  intervention  often  becomes  unavoidable. ' ' 
(pp.  14-15.)  But  Heiberg  quotes  with  approval  the  elder  Rotteck 
against  interference  in  revolutionary  troubles  of  a  neighboring 
state,  and  criticizes  Dr.  Trummer's  reply  in  which  the  latter 


BIBLIOGRAPHY  495 

argued  that  a  state  eould  not  remain  indifferent  to  the  errors 
prevailing  on  the  other  side  of  its  frontiers  against  the  propaga- 
tion of  these  doctrines,  (p.  15.)  Heiberg  remarks:  "A  state 
which  can  be  ruined  in  this  wise,  must  either  be  tottering,  and  out 
of  touch  with  higher  civilization  (Kultur),  or  the  ideas  and  danger- 
laden  system  which  has  gained  recognition  in  the  state  from  which 
the  danger  threatens  must  have  truth  in  them  (p.  16). 

The  remainder  of  the  study  from  page  27  on  is  devoted  to  a 
consideration  of  the  rights  of  the  German  princes,  as  opposed 
to  the  rights  of  sovereignty  of  Germany. 

*Heller,  Karl 

Die  Frage  der  Zulassigkeit  der  volkerrecht- 
lichen  Intervention. 

Dissertation,  Erlangen  University,  Borna,  Leip- 
zig, 1915,  viii+34  p.,  8°. 

[Harvard  Law  Library] 

This  is  a  well  arranged  study  of  the  admissible  grounds  of 
intervention  which  are  enumerated,  p.  12-30.  Of  especial  interest 
is  his  discussion  of  humanitarian  intervention,  p.  24.  The  works 
show  wide  reading  of  the  German  authorities.  Heller's  plan 
of  treatment  is  more  comprehensive  than  is  generally  found,  and 
he  goes  at  the  problem  in  the  correct  way  but  the  work  is  not 
carried  sufficiently  far  to  give  it  the  value  which  we  might 
expect  on  account  of  the  ability  of  the  author. 

Hengstler,  L.  T. 

The  Principle  of  Intervention.  (Lecture  de- 
livered in  an  extension  course,  San  Francisco, 
November,  1898.) 

University  of  California  Chronicle,  Berkeley, 
1898,  p.  521-538. 

[New  York  Public  Library,  in  Library  of 
Congress  [LD739  Vol.  I],  but  not  analyzed] 

An  interesting  popular  discussion  of  the  justification  for  inter- 
vention from  a  common  sense  point  of  view.  It  is  to  be  regretted 
that  the  author  did  not  make  a  thorough  study  of  the  question. 

Hermant,  Joseph. 

La  revolution  hongroise  de  1848,  Les  nation- 


496  INTERVENTION 

alites,  leurs  luttes  et  leuis  revendications,  1 'inter- 
vention polonaise  et  1 'intervention  russe. 
Paris,  Rousseau,  1902.     xiii-\-428  p.,  8°. 

[New  York  Bar  Association  Library] 

Hermes,  oder  Kritisches  Jahrbuch  der  Literatur. 

Leipzig,  F.  A.  Brockhaus,  1819-31.  35  vols.,  pi., 
23  cm.  Quarterly,  1819-24;  irregular,  1825-31. 

Vol.  XI,  p.  142-156,  contains  an  important  review  of  Kamptz's 
work,  signed  "E.  Q. "     See  Kamptz. 

7-3737  AP30.H6  Vol.  XI 

Hershey,  Amos  Shartle,  1867- 

Intervention  and  the  recognition  of  Cuban  in- 
dependence. 

In  The  annals  of  the  American  Academy  of 
Political  and  Social  Science.  Philadelphia,  1898. 
Vol.  xi,  p.  353-380. 

CD  16-199  H1.A4.  Vol.  11 

A  superficial  discussion. 

Hershey,  Amos  Shartle,  1867- 

Incursions  into  Mexico  and  the  Doctrine  of  Hot 
Pursuit. 

In  American  Journal  of  International  Law,  July, 
1919,  vol.  13,  p.  557. 

Hertslet,  Sir  Edward,  1824-1902. 

The  Map  of  Europe  by  Treaty;  showing  the 
various  political  and  territorial  changes  which 
have  taken  place  since  the  general  peace  of  1814. 
With  numerous  maps  and  notes. 
London,  Butter-worths  [etc.}  1875-91.  4  vols., 
maps  (part  fold),  25^  cm.  Vol.  4:  Printed  for 
H.  M.  Stationery  office  by  Harrison  and  Sons. 

10-15038  JX626  1875 


BIBLIOGRAPHY  497 

Herve,  Frangois-Edouard, 

Intervention. 

In  Block's  Dictionnaire  generate  de  la  politique, 
Vol.  II,  1874. 

9-10566  JA62.B7 

An  ill-considered  article.  Herve  concludes  a  superficial  account 
by  condemning  intervention  absolutely.  He  seems  to  be  thinking 
principally  of  intervention  on  the  grounds  of  humanity. 

Heyne,  G.  J. 

Reges   a   suis   fugati   externa  ope   in  regnum 
reducti. 
Goettingen,  1791,  folio. 

This  work  is  cited  by  A.  de  Floeckher:  L 'intervention,  p.  34. 
I  have  not  been  able  to  consult  this  work. 

**  Hobart,  Vere  Henry  Hobart,  Lord,  1818-1875. 

Political  Essays. 

London  and  Cambridge,  Macmillan  &  Co.,  1866. 
152  p.,  23  cm.  [Originally  published  in  " Mac- 
millan's  Magazine,"  December,  1864,  vol.  2,  p. 
114-123.] 

All-2730  H35.H68 

Hobart  makes  an  effort  to  find  a  rule  of  conduct  regarding 
intervention.  He  first  discusses  when  intervention  would  be 
justifiable  if  feasible  without  expense,  and  then  considers  the 
price  which  should  be  paid.  He  advocates  recourse  to  interven- 
tion in  those  cases  when  it  is  justifiable,  and  when  the  cost  is  not 
out  of  proportion  to  the  result  to  be  obtained.  He  also  advocates 
remonstrance  ("moral  intervention")  even  when  recourse  to 
force  is  not  intended.  He  adopts  Mamiani's  doctrine  of  nation- 
alistic intervention,  and  regards  the  struggles  of  nationalities  on 
the  same  plane  as  those  between  independent  states.  The  study 
is  valuable,  particularly  as  an  early  effort  to  establish  some 
sound  and  practical  rule  of  conduct  to  govern  state  action. 
Noteworthy,  also,  is  his  discussion  of  the  right  to  intervene  in 
defense  of  international  law. 
32 


498  INTERVENTION 

*Hodges,  Henry  Green,  1888— 

The  Doctrine  of  Intervention. 
Princeton,  The  Banner  Press,  1915. 

17-18355  JX4481.H6  1915a 

This  doctrinal  dissertation  from  the  University  of  Pennsylvania 
has  the  usual  defect  of  immaturity,  and  was  evidently  not  based 
upon  a  thorough  study  of  the  authorities.  Nevertheless,  the 
author  has  considered  the  problem  in  an  intelligent  manner,  and 
is  one  of  the  few  who  have  attempted  a  comprehensive  classifica- 
tion of  the  grounds  of  intervention.  The  consideration  of  the 
justification  for  humanitarian  intervention  (p.  91)  may  be  con* 
sidered  characteristic  of  the  whole  work.  He  appreciates  the 
importance  of  this  institution,  and  foresees  for  it  a  greater 
development  in  the  future.  He  then  refers  to  several  writers  of 
lesser  merit,  without  mentioning  Kougier,  Arntz,  Bernard,  and  the 
German  writers  who  have  studied  the  question  more  profoundly. 
The  treatment  cannot  be  considered  juridical. 

*Hogan,  Albert  Edmond. 
Pacific  Blockade. 
Oxford,  The  Clarendon  Press,  1908.    183  p.,  23  cm. 

9-6476  JX4494.H7 

Contains  valuable  accounts  of  incidents  of  intervention  in  those 
cases  when  pacific  blockade  has  been  used.  Many  comments  of 
interest. 

Holland,  Thomas  Erskine,  Sir,  1835— 
Studies  in  International  Law. 
London,  1898. 

4-14210  JX2531.S3  1898 

Pacific  Blockade  is  discussed,  p.  130-150. 

Humanitarian  Intervention. 

For  especial  consideration  of  humanitarian  intervention  see 
Eougier;  Snow;  Arntz;  Fugitive  Slaves;  Woolsey,  T.  S.;  Amer- 
ican Foreign  Policy,  p.  74-6  passim;  and  under  Cuba  1868-1878; 
Cuba  1895-98;  Greece  1827.  Many  other  references  will  be  found 
in  the  text  $  8  to  $  8(g).  Consult  also  index. 


BIBLIOGRAPHY  499 

Hungarian  Revolution,  1848-1852. 

Eussia's  interference  raised  the  question  of  the  obligation  of 
"  counter-intervention  by  other  states.  This  also  led  to  the  dis- 
cussion of  the  difference  between  the  right  and  the  obligation 
to  intervene  and  the  question  of  protest  without  armed  inter- 
vention. In  the  matter  of  the  Hungarian  refugees  in  Turkey, 
England  intervened  to  prevent  their  enforced  extradition. 

Boardman,  Henry  A.:    The  new  doctrine  of  intervention  tried 
by  the  teachings  of  Washington,  1852.     63  p.     [An  interesting  and 
powerful  argument  against  intervention  in  favor  of  Hungary.] 
10-25312  E429.B66 

Doane,  George  Washington,  bp.,  1799-1859;    Influence  without 
intervention,  1852.     [Not  important.] 
19-3099  E286.B96  1852 

Goepp,   Charles:    "E    Pluribus    Unum"    a   political    tract    on 
Kossuth  and  America.     36  p. 
10-25311  E429.G59 

Hermant,  Joseph:  La  Revolution  Hongroise  de  1848,  Les  Nation- 
alites  leurs  luttes  et  leurs  revendications ;  L 'Intervention  polon- 
aise et  1 'intervention  russe,  Paris  (Arthur  Rousseau)  1902  XIII — 


[New  York  Bar  Association  Library] 

Eeid,  William  Bradford:    A  few  thoughts  on  Intervention  by  a 
citizen  of  Pennsylvania,  Philadelphia,  1852,  [opposes  intervention 
in  favor  of  Hungary]. 
11-14820  E429.K32 

Sproxton,  Charles,  1890-1917:  Palmerston  and  the  Hungarian 
revolution,  Cambridge  University  Press  1919.  XI-^.148  p.  [A 
very  important  study  which  shows  how  Palmerston  did  intervene 
to  prevent  Russia  and  Austria  from  constraining  Turkey  to  de- 
liver over  the  Hungarian  refugees.] 
20-286  DB936.S7 

U.  8.  Dept.  of  State.     Affairs  of  Hungary  1849-1850.       Gov- 
ernment Printing  Office  1918,  64  p.     Senate  Document  No.  282, 
65  Congress,  2d  Session. 
18-26872  DB938.A5  1918 

U.  S.  Dept.  of  State.     The  Austro-Hungarian  question,  Corre- 
spondence between  Mr.  Hiilseman  and  Mr.  Webster.     Washington, 
1851.     23  p. 
11-34452  E429.U58 

The   following   speeches  were   made   in   the   Senate  relative  to 
intervention  in  favor  of  Hungary: 


500  INTERVENTION 

Bell,  John,  April  13,  1852.     On  Non-intervention  in  the  affairs 
of  Europe.     16  p.     [Condemns  meddling.] 
10-25151  E429.B43 

Case,  Lewis,  January  4,  1850.     On  Suspending  diplomatic  rela- 
tions with  Austria.     8  p. 
11-24457  E429.C34 

Cass,  Lewis,  February  10,  1852.  Non-intervention.  16  p. 
[Discusses  the  consequences  of  protesting  against  the  action  of 
another  state  and  defends  the  right  and  utility  thereof.] 

[Reprint  in  Boston  Public  Library] 

Clemens,  Jeremiah,  December  10,  1851.     On  Mr.  Seward's  reso- 
lution relative  to  Louis  Kossuth. 
10-25149  E429.C62 

Clemens,  Jeremiah,  February  12,  1852.  '  On  Non-intervention. 
8  p.  [Refutes  arguments  of  Kossuth  and  opposes  intervention 
against  Russia.  Is  not  important.] 

[Reprint  in  Boston  Public  Library] 

Clarke,  John  H.,  February  9,  1852.  On  the  subject  of  inter- 
vention. 

[Reprint  in  Boston  Public  Library] 

Cooper,  James,   April   28,   1852.     On   Non-intervention.     23   p. 
[Reprint  in  Boston  Public  Library] 

Hunter,    Robert    M.    T.,    January    31,    1850.      On    suspending 
diplomatic  relations  with  Austria.     7  p. 
10-25150  E429.H94 

Jones,  James  C.,  March  18,  1852.  On  Non-intervention.  16  p. 
20-18467  E429.J77 

Miller,  Jacob  W.,  February  26,  1852.  In  defense  of  American 
policy  of  Non-intervention.  7  p. 

[Reprint  in  Boston  Public  Library] 

Reward,  William  H.,  March  9,  1852.  On  the  proposed  protest 
of  the  United  States  against  the  armed  intervention  of  Russia  in 
the  Hungarian  revolution.  16  p. 

[Reprint  in  Boston  Public  Library] 

Stockton,  Kobert  F.,  February  2,  1852.     On  Non-intervention, 
8  p.,  8°. 
19-20271  E.429.S86 

Smith,  William  B.,  in  the  House  of  Representatives  December 
15,  1851  [spoke  in  opposition  to  Kossuth  and  intervention  in 
favor  of  Hungary],  16  p. 

11-24458  E429.S66 


BIBLIOGRAPHY  501 

*Hyde,    Charles    Cheney,    1873— [Professor    of    Law, 
Northwestern  University]. 

Intervention  in  Theory  and  in  Practice. 
Illinois  Law  Review,  May,  1911,  vol.  6,  p.  1-16. 
Also   printed   in   Law   Students'   Helper,   1911, 
vol.  19. 

An  objective  study  of  the  policy  of  the  United  States  in  regard 
to  intervention,  with  careful  consideration  of  the  instances. 
Professor  Hyde  discusses  the  practice  of  the  United  States,  and 
gives  full  references  to  sources.  He  concludes  his  discussion  with 
a  statement  of  the  cases  when  the  United  States  may  be  expected 
to  intervene.  This  is  one  of  the  best  short  considerations.  No 
attempt  is  made  to  discuss  the  fundamental  principles,  but  Mr. 
Hyde  traces  in  broad  lines  the  theory  as  it  has  influenced  the 
practice  of  the  United  States  Government. 

Institut  de  droit  international. 

Report  presented  by  M.  Desjardins  on  inter- 
vention and  recognition  in  the  case  of  insurrec- 
tion. 
In  Annuaire,  1898,  vol.  17,  p.  71-95. 

10-16478  JX24.I4.  Vol.  17 

This  report  bears  upon  the  Cuban  question  which  was  a  question 
of  general  interest  at  that  time. 

Intervention  for  Humanity:  See  Humanitarian  Inter- 
vention. 

Kamarowski,  Count 

The  Principle  of  Non-Intervention  [in  Russian] 
Moscow,  1874. 

F.  de  Martens  includes  this  in  his  bibliography,  cited  also  by 
Donnadieu.  I  was  unable  to  find  it  in  this  country. 

**[Kamptz,  Karl  C.  A.  H.  von],  1769-1849,  [published 
anonymously]. 

Volkerrechtlicke  Erorterung  des  Rechts  des 
Europaischen  Machte  in  die  Verfassung  eines 
einzelnen  Staats  sich  zu  mischen. 


BARBARA  STATE  COLLEGE 


502  INTERVENTION 

Berlin      Nicholaischen      Bitchhandlung,      1821. 
XVI+214  p.,  8\ 

[Harvard  Law  Library] 
[Yale  University  Library] 

This  work  attempts  to  justify  interference  in  the  internal 
affairs  of  independent  states  on  the  ground  that  revolutionary 
changes  even  if  only  by  their  example  endanger  the  peace  and 
security  of  other  states — that  is  of  the  whole  structure  of  inter- 
national society.  This  indefensible  policy  which  had  at  that  time 
recently  been  adopted  by  the  Holy  Alliance  under  the  guidance 
of  Metternich  is  supported  with  all  the  skill  of  an  expert  partisan. 
Kamptz,  the  anonymous  author,  is  sound  in  his  premise  that  "the 
peace  and  security  of  the  community  of  European  States "  is  a 
sufficient  ground  for  action,  and  again  he  is  correct  in  declaring 
that  intervention  for  such  a  purpose  is  for  the  society  of  states 
as  necessary  as  is  police  action  within  each  of  the  separate  states 
(cf.  Preface,  p.  VII,  VIII),  but  he  nowhere  shows  that  a  con- 
stitutional change  or  revolution  does  constitute  such  a  danger. 
Kamptz  sets  down  with  lucidity  the  fundamental  proposition 
that  every  independent  state  is  free  to  settle  its  internal  affairs 
as  may  seem  to  it  best  (p.  1)  and  he  supports  this  principle  by  a 
great  and  learned  array  of  authorities  and  documents.  But  as  he 
briefly  states:  "This  independence  of  the  European  States  is 
certainly  not  unconditional"  (p.  3,  par.  2).  He  then  points  out 
still  without  the  possibility  of  dispute  that  independence  must 
be  used  in  such  a  manner  as  not  to  injure  the  common  interests 
of  all  the  states.  This  he  reminds  us  is  no  sacrifice  of  the  rights 
of  a  state  for  in  return  it  benefits  from  the  same  restriction 
placed  upon  the  other  states.  So  far  so  good.  It  is  only  when 
Kamptz  proceeds  to  apply  this  rule  and  to  make  an  effort  to 
justify  interference  to  prevent  constitutional  changes  through 
revolutions  that  he  parts  company  with  law  and  indulges  in  what 
appears  to  be  a  highly  prejudicial  if  not  insincere  effort  to 
support  the  arbitrary  policy  of  his  government  (Prussia)  and 
the  Holy  Alliance. 

The  plan  of  the  argumentation  is  admirable  and  worthy  to 
serve  as  a  model.  After  he  has  laid  down  his  proposition  clearly 
and  defended  it  by  a  brief  argumentation  and  supported  it  by 
such  a  judicious, — we  might  better  say  prejudiced,  but  none  the 
less  impressive, — selection  of  authorities,  he  devotes  the  re- 
mainder of  the  book  (p.  85-214)  to  a  discussion  of  the  instances 
which  have  occurred  in  history  to  show  that  the  states  in  their 
practice  have  interfered  upon  the  grounds  which  it  is  the  avowed 
intention  of  this  work  to  justify. 


BIBLIOGRAPHY  503 

The  anonymous  review  in  Hermes  (Vol.  XI,  p.  142-156) 
severely  criticizes  the  author  of  this  work  and  his  insincerity  and 
prejudice  in  his  selection  of  references  to  the  authorities.  H.  von 
Eotteck  (Recht  der  Einmischung,  1845,  p.  9-10)  criticizes  Kamptz 
severely  as  a  creature  of  Prussian  bureaucracy  preparing  an 
excuse  for  the  anticipated  action  of  the  Congress  of  Verona, 
and  concludes,  "Let  us  leave  Herr  von  Kamptz  who  hardly  needs 
refutation. ' ' 

Notwithstanding  the  defects  we  have  noted,  the  work  is  of 
value  if  used  cautiously  by  one  familiar  with  the  principles  and 
the  authorities. 

Professor  Kebedgy  modestly  lays  claim  (p.  28)  to  undertake 
merely  an  elementary  essay  upon  intervention.  Nevertheless,  he 
has  given  us  a  valuable  study,  albeit  not  a  complete  one,  since 
we  find  for  instance  no  consideration  of  counter-intervention. 
His  analysis  is  accurate  and  fine.  The  definition  which  he  gives, 
page  29,  follows  Bluntchli,  to  whom  he  refers.  Pages  29  to  38 
give  interesting  analyses  of  the  cases  of  non-intervention  and 
contain  the  gist  of  Professor  Kebedgy 's  views.  On  page  40  he 
lays  down  the  general  principle  that  intervention  is  illegal  and 
then  admits  certain  exceptions  when  "absolutely  necessary,"  and 
(page  42)  he  considers  that  states  have  a  right  to  intervene  for 
their  self-preservation.  Justifying  intervention  by  virtue  of  a 
treaty  he  does  not  explain  that  treaties  do  not  create  the  right 
(p.  70f).  He  goes  carefully  into  humanitarian  intervention 
(p.  78f)  but  would  limit  it  to  collective  action  or  to  mandatory 
action  by  which  the  discretionary  action  of  the  intervening  state 
is  eliminated  (p.  82).  He  next  takes  up  to  deny  the  right  of 
intervention  in  civil  war  in  response  to  an  appeal  from  the  state 
and  upon  religious  grounds.  The  remaindeer  (p.  104-217)  is 
devoted  to  a  study  of  the  instances  in  which  the  powers  have 
intervened  in  Turkey. 

**  Kebedgy,  Michel  S. 

De   1 'intervention,    theorie    generale    et    etude 
speciale  de  la  question  d 'Orient.     [Doctoral  dis- 
sertation, University  of  Paris.] 
Paris,  A.  Giard,  1890.     224  p.,  25  cm. 

9-8119  JX4481.K5 

**Kluber,  Johann  Ludwig,  1762-1837. 

Droit  des  gens  moderne  de  1 'Europe,  avec  un 
supplement  contenant  une  bibliotheque  choisie  du 


504  INTERVENTION 

droit  des  gens.    Nouv.  fid.  rev.,  annotee  et  com- 

pletee  par  M.  A.  Ott.  2  ed. 

Paris,  Gwllaumin  et  cie.     [etc.]     1874.    xxxi\-\- 

573  p.,  22y2  cm. 

9-188857  JX2804.D6 

*Kraus,  Herbert. 

Die  Monroedoktrin  in  ihren  Beziehungen  zur 
amerikanischen  Diplomatic  und  zum  Vb'lkerrecht. 
Berlin,  J.  Guttentag,  1913.  480  p.,  24  cm. 

13-25349  JX-1425.K77 

Herbert  Kraus's  "Monroedoktrin,"  is  a  painstaking  and  re- 
liable investigation,  well  adapted  to  present  the  matter  to  the 
German  scholars  and  others  familiar  with  the  German  language. 
With  this  object  in  view,  a  short  study  of  the  diplomatic  history 
of  the  question  is  included  and  the  various  instances  where 
European  countries  have  employed  force  in  their  dealings  with 
the  American  States  are  carefully  chronicled.  It  is  only  inci- 
dentally that  the  author  takes  up  the  question  of  intervention. 
Nevertheless,  in  the  section  devoted  to  the  Monroe  Doctrine  and 
intervention,  pp.  369-98,  Kraus  shows  his  familiarity  with  the 
authorities  and  supplies  valuable  bibliographical  notes  for  inter- 
vention, non-intervention,  self-help,  self-preservation,  balance  of 
power,  etc.  These  notes  have  an  additional  value  because  of  the 
author's  familiarity  with  the  German  authorities,  to  whom  refer- 
ences are  given.  Selected  bibliographies  of  the  works  on  inter- 
national law  and  of  those  relative  to  the  Monroe  Doctrine  are 
included.  The  work  is  brought  down  to  May,  1913. 

***Krug,  Wilhelm  Traugott,  1770-1842. 

Dikaopolitik,     oder     neue     Restaurazion     der 
Staatswissenschaft  mittels  des  Rechtsgesetzes. 
Leipzig,  bei  T.  H.  F.  Hartmann,  1824.     X+420  p., 
8°. 

[In  my  own  Library] 

Krug  enters  upon  a  discussion  of  the  legal  justification  of 
intervention.  After  carefully  drawing  the  line  between  mediation 
and  intervention,  he  takes  up  the  grounds  which  he  considers 
justify  intervention.  But  the  context  shows  that  he  is  only 
considering  the  ground  for  interference  in  constitutional  affairs 


BIBLIOGRAPHY  505 

and  in  civil  disputes.  He  states  that  interference  in  the  latter 
case  is  only  justifiable  in  two  eases:  First,  when  it  is  based  upon 
a  treaty  (p.  329-330)  and  Second,  when  an  intentionally  hostile 
propaganda  is  carried  on  in  a  neighboring  state  (p.  330-332). 
Krug  then  takes  up  by  way  of  illustration  of  the  first  instance 
the  justification  for  Russia's  pending  intervention  in  Turkey 
(p.  332-8).  Thereafter  he  comes  to  what  is  evidently  the  purpose 
of  all  his  preliminary  statement  of  principles,  namely:  the  dis- 
cussion of  French  intervention  in  Spain  (p.  338-364).  His 
analysis  of  this  instance  is  very  interesting.  He  states  and 
refutes  the  grounds  alleged  to  justify  French  interference,  and 
defines  the  limit  of  action  which  was  justifiable  on  the  grounds 
of  national  interests  and  security. 

Discussing  the  necessity  which  drives  a  nation  to  make  war, 
Krug  denies  that  there  can  be  a  national  physical  necessity  and 
considers  that  it  has  its  source  in  a  desire  to  extend  dominions 
and  gain  in  prestige  (p.  66-67).  He  remarks  that  all  states 
entering  upon  war  declare  that  they  do  so  to  secure  their  rights 
(p.  370)  and  when  they  make  peace  they  swear  an  eternal  friend- 
ship, although  this  eternity  is  always  of  short  duration,  since 
they  always  find  new  occasions  for  war.  All  of  this  goes  to  show 
the  place  which  the  idea  of  society  of  the  states,  based  upon 
law,  holds,  but  this  can  only  gradually  be  reached  like  every 
ideal  (p.  371).  He  enters  upon  a  remarkable  discussion  of  the 
causes  and  motives  for  war  and  the  hopes  of  attaining  the  ideal 
of  peace.  The  nature  of  the  balance  of  power  is  considered 
(p.  372f).  Just  war  and  the  right  of  self-defense  is  taken  up 
(p.  375f).  Other  questions,  such  as  indemnity,  and  the  right 
of  the  victor  over  conquered  territory  are  also  discussed.  This 
is  one  of  the  most  philosophical  and  comprehensive  consider- 
ations which  had  appeared  at  that  date. 

Latane,  John  Holladay,  1869— 

The  Diplomatic  Relations  of  the  United  States 
and  Spanish  America. 

Baltimore,  The  Johns  Hopkins  Press,  1900.    294 
p.,  20y2  cm. 

1-2466  JX1428.S7L3 

Latane,  John  Holladay. 

Intervention  of  the  United  States  in  Cuba, 
in  North  American  Review,  March  1898,  vol.  166, 
p.  350-361. 

AP2.N7.  vol.  166 
Relates  to  Cuban  insurrection  of  1868-1878,  which  see. 


506  INTERVENTION 

Laveleye,  Emile,  baron  de,  1822-1892. 

On  the  causes  of  wars  and  the  means  of  re- 
ducing their  number. 

in  Cobden  Club  Essays,  Second  Series,  1871-1872, 
p.  1-55,  London,  1872. 

6-43714  H31.C55 

Laveleye  lists  the  causes  of  war.     This  list  serves  as  well  for 

the    causes    of   recourse   to  other    means   of   constraint,   but  his 

arrangement  indicates  that  he  does  not  go  very  deeply  into  the 
question. 

*  Lawrence,  Thomas  Joseph,  1849 — 1919. 

The  Principles  of  International  Law. 
4th  edition,  Boston,  1910.    xxi+745  p.,  21  cm. 

10-26825  JX2542.P3  1910 

Suggestive,  simple,  clear  and  sound  for  the  most  part  but  not 
uniformly  juridical  or  consistent. 

Le  Fur,  L. 

fitude  sur  la  guerre  hispano-americaine  de  1898 
envisagee  an  point  de  vue  du  droit  international 
public. 
Paris,  A  Pedone,  1899.    xlii+316  p.,  24y2  cm. 

2-126  M2  E723.L49 

Criticizes  U.  S.  intervention  in  Cuba  as  unjustifiable.  Says 
intervention  on  ground  of  humanity  only  justified  when  intervener 
is  disinterested  (p.  42-43). 

Levides,  S.  M. 

Le  droit  d'  intervention  des  grandes  puissances 
a  propos  du  conflit  greco-roumain. 
in  Revne  generate  de  droit  international  public, 
1906,  vol.  13,  p.  582-588. 
10-31105  JX3.R56 

Criticizes  Roumania  and  advocates  collective  intervention  of 
powers.  Not  important. 


BIBLIOGRAPHY  507 

Limburg,  Stirum,  J.  P.  van  Tets. 

Over  de  Volkenrechtelijke  interventie. 
Ley  den:  Klein,  1895,  93  p.,  23  cm.  Thesis,  Ley  den, 
1895. 

[Columbia  University  Library, 
Harvard  Law  Library] 

***Lingelbach,  William  Ezra,  1871- 

The  doctrine  and  practice  of  intervention  in 
Europe. 

in  The  Annals  of  the  American  Academy  of 
political  and  social  science,  Philadelphia,  1900, 
vol.  16,  No.  1,  p.  1-32. 

CD  17-41  H1.A4 

Based  upon  the  paper  read  before  the  Eouen  Conference  of  the 
International  Law  Association,  1900  Eeport,  p.  106-116;  an 
article,  original,  sound,  and  constructive;  it  shows  that  Inter- 
vention is  a  valuable  sanction  to  enforce  international  law,  and 
points  out  that,  being  the  instrument  of  a  political  government, 
it  is  given  a  political  tinge  to  correspond  with  the  sentiments  of 
the  epoch. 

Liszt,  Franz  von,  1851-1919.     [Professor  of  Law,  Ber- 
lin University.] 

Das  Volkerrecht. 

10  ed.}  Berlin,  1910;  11  ed.,  1918.  [An  unaltered 
reprint  is  dated  Berlin,  1920.] 

20-20582  JX3445.V4  1920 

The  consideration  of  intervention  is  not  very  exhaustive,  but 
is  important  because  of  the  ability  of  this  author,  his  high  stand- 
ing as  a  learned  and  scientific  jurist,  and  also  because  of  his 
influence  on  German  thought.  The  Carnegie  Endowment  for 
Peace  announces  a  French  translation. 

Liverpool,  lord. 

Debate  in  House  of  Lords,  February  19,  1821, 
relative  to  justification  of  conduct  towards  Naples. 


508  INTERVENTION 

in  Hansard's  Debates,  New  Series,  vol.  IV,  p. 
760-771. 

Justification  for  interference — Proper  to  remonstrate  in  cer- 
tain cases  when  interference  is  not  justifiable — Denies  that  there 
was  a  refusal  by  the  Government  to  recognize  the  Naples 
Government. 

Lorimer,  James,  1818-1890. 

The  Institutes  of  the  Law  of  Nations. 
Edinburgh  and  London,  1883-1884.     2  vols. 

5-394  JX2548.15 1883 

Important  discussions  of  the  basic  principles  of  intervention 
and  of  the  balance  of  power. 

Lynden  van  Sandenburg,  Frederik  Alexander  Carel 
van. 

Eenige  beschouwingen  over  interventie  in  het 
internationaal  recht. 

Utrecht,  P.  den  Boer,  1899.    [Disseration,  Utrecht 
University.] 

D-297  JX4481.L9 

•^Mackintosh,  Sir,  James,  1765-1832. 

History  of  the  Revolution  in  England  in  1688. 
[Completed  and  published  posthumously.] 
London,  1834.     clxxvi,  734  p.,  28  cm. 

2-28671  DA435.M18 

In  Chapter  IX  discusses  right  of  revolution,  and  compares  to 
the  right  of  making  war;  lays  down  principles  (p.  297),  remarks 
upon  perils  of  calling  in  auxiliaries  (p.  302-3).  In  Chapter  X 
discusses  interference.  Creasy  probably  refers  to  Chapter  X 
when  he  says:  "For  a  complete  exposition  of  the  causes  which, 
and  which  alone,  justify  insurrection  and  foreign  intervention 
on  behalf  of  the  insurgents,  see  Mackintosh's  'Review  of  the 
Causes  of  the  Revolution  of  1688,'  chap,  ix  [X].  Students  of 
Ethics,  of  History,  and  of  International  Jurisprudence  cannot 
bestow  too  much  attention  to  this  chapter,  which  is  the  gem  of 
all  Mackintosh's  works."  (Creasy:  First  Platform  of  Inter- 
national Law,  p.  297  note.) 


BIBLIOGRAPHY  509 

"The  first  portion  of  this  volume,  consisting  of  the  fragment 
by  Sir  James  Mackintosh,  was  published  separately  under .  .  .  title : 
View  of  the  reign  of  James  II,  Lond.  1835."  (Lowndes: 
Bibliographer's  manual  of  Eng.  lit.) 

Maine,  Sir  Henry  James  Sumner,  1822-1888. 

International  Law;    a  series  of  lectures  deliv- 
ered before  the  University  of  Cambridge,  1887. 
London,  J.  Murray,  1888.     4  p.  I.,  234  p.,  23  cm. 
(The  Whewell  lectures,  1887.) 

4-3855  JX2555.16 1888 

*Mamiani  della  Rovere,  Terenzio,  conte,  1799-1885. 

Bights  of  Nations,  or  The  New  Law  of  Euro- 
pean States  applied  to  the  Affairs  of  Italy. 
[Translated  from  the  Italian  (Turin,  1859),  and 
edited  with  the  author's  additions  and  corrections, 
by  Roger  Acton.] 
London,  1860. 

10-17147  JX2897.D3  1860 

Mamiani,  in  his  dedication  of  the  English  edition,  calls  it  an 
English  version  of  an  Italian  book  of  English  principles,  and 
the  English  edition  is  dedicated  to  Lord  John  Russell  in  memory 
of  his  despatch  addressed  to  the  courts  of  Paris  and  Vienna,  the 
sixteenth  of  August,  1859,  prohibiting  the  intervention  of  any 
foreign  force  to  put  down  the  will  of  the  people  in  central 
Italy 

About  one-third  of  the  book  is  devoted  mainly  to  a  discussion 
of  intervention.  Mamiani 's  Avork  must  be  considered  important 
because  it  is  often  referred  to,  and  has  influenced  others,  in  part 
no  doubt,  because  there  were  not  at  that  time  so  many  books 
available  to  English  readers  dealing  with  the  subject  of  inter- 
vention. 

Page  140f.,  Mamiani  denies  the  right  of  intervention  in  a 
civil  war,  but  permits  such  intervention  when  the  war  is  waged 
by  a  subject  people,  as  in  the  case  of  the  Dutch  against  the 
Spaniards,  the  Swiss  against  Austria  and  Burgundy,  etc.  (p.  144). 

In  chapter  X,  discussing  the  maintenance  of  equilibrium  in  the 
states  of  Europe,  he  criticizes  intervention  for  that  purpose, 
seeming  to  fear  that  the  maintenance  of  the  European  equilibrium 


510  INTERVENTION 

might  stand  in  the  road  of  the  consummation  of  national 
aspirations. 

Chapter  XI  defends  the  principle  of  non-intervention. 

Chapter  XII  begins  with  a  declaration  that — "It  is  now  time 
for  us  to  examine  those  peculiar  cases  in  which,  more  especially, 
it  is  sought  at  the  present  day  to  find  a  right  of  intervention, 
those  cases,  namely,  in  which  revolutions  and  political  changes  in 
the  interior  of  a  state  are  deemed  pernicious  to  the  security  and 
the  tranquility  of  other  states,  and  chiefly  of  those  adjacent 
to  it." 

He  then  proceeds  to  examine  whether  there  are  exceptions  to 
this  principle.  Mamiani  recognizes  the  right  of  intervention 
against  intervention,  discussing  intervention  on  the  ground  of 
humanity  (p.  182),  and  so  hedges  around  the  right  of  interven- 
tion claimed  by  Grotius  as  practically  to  deny  it Rougier 

speaks  of  Mamiani  as  a  founder  of  a  theoretical  school  which 
placed  the  doctrine  of  non-intervention  upon  the  plane  of  an 
intangible  dogma  and  says  that  he  had  as  a  brilliant  disciple 
Carnazzi  Amari.  (Eevue  g£ne>ale,  vol.  17,  p.  297.) 

Bernard  (Non-intervention,  pp.  18-19)  says  of  this  work: 
"Count  Mamiani  is  a  man  who  has  suffered  and  labored  much 
Tor  the  regeneration  of  Italy.  He  has  been  an  insurgent,  a 
prisoner,  an  exile,  was  President  of  Ministers  during  Pius  the 
Ninth's  short  attempt  at  Parliamentary  government,  remained 
at  Rome,  I  believe,  till  the  French  entered  it,  has  since  been  an 
active  member  of  the  Sardinian  Parliament,  and  in  January  last 
became  Minister  of  Public  Instruction  under  Victor  Emmanuel. 
He  has  this  year  (?  1860)  published  a  thoughtful  and  eloquent, 
though  not  very  closely  reasoned,  book,  entitled  ' '  A  New  European 
Public  Law,"  the  scope  and  drift  of  which  are  such  as  we  might 
expect  from  the  antecedents  of  the  writer, — that  is,  it  shares  with 
some  of  the  best  existing  books  on  international  law  the  defect 
of  having  been  composed  to  support  a  foregone  conclusion. 

Hall  (4  Ed.)  quotes  Mamiani  with  approval  in  footnotes  to  his 
discussion  of  intervention.  He  refers  to  Mamiani  at  least  four 
times. 

•H-frManning,  William  Oke. 

Commentaries  on  the  Law  of  Nations.     [A  new 
edition   revised   with   supplementary  matter  by 
Sheldon  Amos.] 
London,  1875.     [First  published  in  1837.] 

10-17126  JX2558.C7 1875 

For  a  discussion  of  intervention,  see  Bk.  Ill,  ch.  I,  p.  91-102 ; 
Bk.  IV,  ch.  I,  p.  131-141.  The  careful  revision  and  notes  of 


BIBLIOGRAPHY  511 

Amos  give  this  work  an  additional  value  for  the  study  of  inter- 
vention. 

Marckart,  Jo.  Guil. 

De  jure  atque  obligatione  gentium  succurendi 
injuste  oppressis. 
Harderov,  1748. 

Cited  by  Heffter:  Volkerrecht,  4  ed.,  §  46,  p.  95.  I  was  unable 
to  consult  this  work. 

Martens,  Fedor  Fedorovich  von,  1845-1909. 

Traite  de  droit  international.  Tr.  du  russe  par 
Alfred  Leo.  [Also  into  German  by  Bergbohm, 
1883-6.  2Vols.] 

Paris,  Chevalier-Marescq  et  tie.,  1883-87.     3  v. 
221/2  cm. 

1-18881  JX2951.T5 

Often  referred  to  because  of  the  prominence  of  the  author. 
The  discussion  of  intervention  is  biased  and  incomplete.  It  is 
of  value  as  the  exponent  of  Russian  policy  under  the  old  regime. 

•H-frMartens,  Georg  Friedrich  von,  1756-1821. 

Precis  du  droit  des  gens  moderne  de  1 'Europe. 
Augmente  des  notes  de  Pinheiro-Ferreira. 
Paris,  Guillaumin  et  tie.,  1864.     2  vols.,  18  cm. 
[1st  ed.  was  published  in  French  in  1788.] 

10-17086t  JX2324.P3  1864 

De  Martens'  Precis  is  generally  recognized  as  one  of  the  earliest 
and  also  as  one  of  the  best  texts  of  the  positive  school  which 
bases  international  law  upon  the  principles  as  shown  by  the 
practice  of  states  and  not  deduced  apriori  from  principles  dog- 
matically asserted.  Upon  this  basis  de  Martens  denies  the  right 
of  interference  in  internal  affairs  (Ed.  1821,  §  116,  p.  215; 
$  117,  p.  216),  save  in  certain  exceptional  cases,  and  he  does  not 
include  permission  to  interfere  on  the  ground  of  constitutional 
objection  to  provisions  and  changes  (Ed.  1821,  $  73,  p.  137; 
§  79,  p.  138;  $  78,  p.  146).  De  Martens  recognizes  that  even 
a  guarantee  of  the  previous  constitution  does  not  authorize  in- 
terference (§  78,  p.  146).  De  Martens  recognizes  the  right  to 
intervene  to  prevent  religious  persecution  (i.  e.  humanitarian 


512  INTERVENTION 

intervention:  on  the  ground  of  intolerance)  but  he  recognizes 
that  in  practice  political  considerations  govern  recourse  to  this 
action  (Ed.  1821,  $  114,  p.  211).  It  is  especially  profitable  to 
read  what  de  Martens  says  in  regard  to  the  Balance  of  Power 
and  the  right  of  growth  ($$  120-4,  p.  219-231).  A  sense  of 
measure  and  the  needs  of  statecraft  derived  from  practical 
experience  and  combined  with  extraordinary  learning  place  de 
Martens  in  the  first  rank  of  publicists. 

Martin,  Charles  Emanuel. 

The  Policy  of  the  United  States  as  Regards 
Intervention. 

New  York,  1921.  In  Columbia  University  Studies 
in  Political  Science,  No.  211, 1921,  vol.  93.  173  p., 
22^/2  cm. 

21-3655  JX4481.M3 

Restricted  to  a  discussion  of  the  policy  of  the  United  States, 
this  work  does  not  particularly  consider  the  principles  governing 
intervention. 

Martinet,  Andre. 

La  seconde  intervention  franchise  et  le  siege 
d'Anvers,  1832. 
Brussels,  1908.    8°. 

[Hague  Peace  Palace  Library] 

I  was  unable  to  consult  this  work. 

*Maxey,  Edwin,  1869.     [Professor  of  Law,  West  Vir- 
ginia University.] 

International  Law  with  Illustrative  Cases. 
St.  Louis,  1906. 

6-11647  JX3151.I5 1906 

For  a  discussion  of  intervention,  see  ch.  IV,  p.  338-342. 
Professor  Maxey  gives  a  very  concise  and  accurate  summary  of 
the  views  generally  accepted.  His  book  is  listed  for  this  reason. 
Professor  Maxey  denies  the  validity  of  intervention  for  humanity 
(p.  341). 

Mexico,  1861-1868. 

This  instance  was  in  part  interposition  for  redress  and  in  part 
a  political  interference  by  France  against  which  the  counter- 


BIBLIOGRAPHY  513 

intervention  of  the  United  States  was  directed.  It  is  of  little 
value  for  the  study  of  the  principles. 

Duniway,  Clyde  A.:  Eeason  for  the  withdrawal  from  Mexico  in 
American  Historical  Association  Report,  1902,  Vol.  I,  p.  313-28. 

Blavehot :  Intervention  franchise  au  Mexique,  Paris,  1911,  3  vols. 
[New  York  Bar  Association  Library] 

Many  other  references  will  be  found  in  the  Library  of  Con- 
gress Bibliography  on  ' '  Arbitrations, ' '  p.  101-114. 

Mexico,  1911-1921. 

Relates  to  interposition  for  redress;  Interference  in  the  in- 
ternal affairs  of  Mexico ;  Delayed  recognition ;  The  supervisory 
capacity  of  the  United  States;  Self -Help  and  Collective  Action. 
Only  two  works  of  importance  have  come  under  my  eyes: 

Moore,  John  Bassett:  Principles  of  American  Diplomacy,  New 
York,  1918,  p.  213-38  [gives  a  succinct  but  noteworthy  account 
of  the  events  and  of  the  policies  of  the  Wilson  Administration 
towards  Mexico  up  to  1917]. 

Schoenborn,  Walter:    Die  Besetzung  von  Vera  Cruz. 

Hodges:  Intervention  [comments  favorably  upon  the  policy  of 
the  Wilson  Administration  towards  Mexico]. 

Inman,   Samuel    Guy:     Intervention    in    Mexico,    foreword    by 
Professor   William   R.   Shepherd.     New   York,   Association   press, 
1919. 
19-13639  F1234. 1  57 

Anonymous:  Nicaragua  and  Mexico  in  Nation,  September  12, 
1913,  vol.  95,  p.  326  (A  P  2,  N  2,  V.  95)  [condemn  landing  of 
American  troops  in  Nicaragua  and  opposes  intervention  in 
Mexico.] 

Anonymous:  Our  duty  in  Mexican  disorder,  in  Literary  Digest, 
September  21,  1912,  Vol.  45,  p.  455-456  (A  P  2,  L  58,  v.  45). 
[Interesting  resume  and  extracts  from  press  commenting  on  the 
situation  in  Mexico  and  the  pros  and  cons  of  intervention.] 

Bell,  Enoch  F.:  Intervention  and  the  Mexican  Problem  in  The 
Journal  of  International  Relations,  October,  1919,  pp.  138-150. 
[A  well  written  article  arguing  against  armed  intervention  and 
pointing  out  the  peaceful  methods  of  helping  Mexican  progress.  ] 

Culberson,  Charles  A.:    Brief  in  support  of  Senate  resolution 
of  April  20,  1911,  relative  to  intervention  in  affairs  'n  Mex:co.  . 
Washington,  1911.     7  p.,  S3  cm.  (U.  S.  62d  Cong.,  1st  sess.  Senate. 
Doc.  25). 
11-35422  JX1428.M5A4  1911 

Hershey,  Amos  S.:    Mexico  and   International   law.     In   Inde- 
pendent, ApriJ  6.  7.077,  rol.  70.  p.  708-711.     (A  P  2,  I  ;"3  v.  70) 
33 


514  INTERVENTION 

[Interesting  popular  discussion  of  the  obligations  and  rights  of 
the  U.  S.  in  regard  to  Mexico.  Quotes  Root  with  approval  as 
denying  the  right  to  collect  contract  debts  by  force]. 

Turner,  John  Kenneth:  What  we  should  do  about  Mexico.  In 
Nation,  December  13,  1919,  pp.  740-74S. 

Turner,  John  Kenneth:  Why  we  should  leave  Mexico  alone.  In 
Nation,  November  29,  1919,  pp.  680-682. 

Tarle,  A.  de:  L 'Intervention  Militaire  des  Etats-Unis  au 
Mexique.  In  Questions  diplomatiques  et  coloniales,  May  1,  1912, 
Vol.  SS,  p.  526-538  [Discusses  the  military  situation  of  the 
United  States  in  the  event  of  intervention  in  Mexico]. 

The  Library  of  Congress  in  a  typewritten  list  gives  the  follow- 
ing additional  items  from  the  Congressional  Record:  Slayden, 
James  L.;  Stone,  William  J.;  Murray,  William  H.;  Sherwood, 
Isaac  E.,  and  the  debate  of  August  21,  1913,  in  the  Senate. 

•H-H-Mill,  John  Stuart,  1806-1873. 

A  Few  Words  on  Non-intervention, 
in  Frazer's  Magazine,  May,  1859,  p.  766-771;  also 
in  Mill's  Dissertations  and  Discussions,  London, 
1868,  vol.  Ill,  p.  153-178. 

8-4265  AC8.M48 

A  strong  argument  for  veritable  non-intervention  in  all  cases. 

Mill,  John  Stuart,  1806-1873. 

The  Letters  of  John  Stuart  Mill;   edited,  with 
an  introduction,  by  Hugh  S.  R.  Elliot. 
London,  1910,  2  vols.,  231/2  cm. 

A  10-473 

For  remarks  on  intervention,  see  vol.  I,  p.  195;  vol.  II,  pp. 
24,  305. 

Monroe  Doctrine. 

The  Monroe  Doctrine  relates  especially  to  counter-intervention 
and  the  right  of  preventive  action.  It  is  also  closely  connected 
with  the  ill-defined  supervision  of  the  United  States  over  less 
developed  states  of  Central  and  South  America.  Unfortunately 
the  numerous  works  upon  the  subject  do  not  generally  appear  to 
have  discussed  the  principles  of  intervention.  For  this  reason 


BIBLIOGRAPHY  515 

I  did  not  think  it  profitable  to  attempt  to  make  a  complete 
examination  of  the  material.  The  student  is  referred  to  the 
account  given  by  Professor  John  Bassett  Moore:  Principles  of 
American  Diplomacy,  p.  269,  and  Herbert  Kraus:  Die  Monroe- 
doktrin.  The  Library  of  Congress  supplies  a  large  collection  of 
cards  upon  this  topic. 

•H-frMoore,  John  Bassett,  1860 — 

A  Digest  of  International  Law. 
Washington,  1906.     8  vols. 

6-35196  JX237.M7 

Volumes  V,  VI,  and  VII  contain  documents  and  comments  of 

first   importance   for   the   study    of  the   theory   and   practice    of 

international  intervention.  Vol.  VI  is  devoted  entirely  to  Inter- 
vention. 

***Moore,  John  Bassett,  1860— 

The  Principles  of  American  Diplomacy. 
New  York,  1918.     xv+477  p.,  8°. 

18-2711  JX1407.M8  1918 

Brings  the  author's  American  Diplomacy,  1905,  down  to  date. 
Discusses  the  American  Policy  of  "Non-Intervention"  p.  197-238. 
For  references,  see  p.  269.  Discusses  Monroe  Doctrine,  p.  238-69. 
Bibliography,  p.  269. 

Morillon,  Charles,  de. 

Du   principe  d 'intervention   en  droit   interna- 
tional public  et  des  modifications  qu'il  a  subies  an 
cours  de  1'histoire. 
Dijon,  Imprimerie  regionale,  1904.     182  p.,  25  cm. 

8-29311  JX4481.M7 

•H-Moser,  Johann  Jakob,  1701-1785. 

Versuch  des  neuesten  europaischen  Volkerrechts 
in  Friedens-und  Kriegs-zeiten. 
Frankfurt,  1770-80.     10  v.  in  12.     20y>  cm.     Vol. 
9-10  each  in  two  parts. 

10-16946t  JX2333.V5  1777 


516  INTERVENTION 

Moser  in  the  sixth  part  of  his  "Versuch"   (p.  96-7,  184,  312) 
passes  in  review  the  right  of  independent  states  to  be  free  from 
interference    (p.   313,   318,   398-9)    and   enumerates,    rather   dog- 
matically,  it   is   true,   certain   of   the   rightful   causes   of  action. 
These  he  supports  with  instances  drawn  from  the  experience  of 
states  since  1740.     Among  the  exceptions  to  the  general  rule  of 
non-interference,  Moser  recognizes  as  grounds  of  intervention  or 
"meddling"    (mengen,  as  he  calls  it)    the   following:     When  a 
constitution  is  guaranteed  and  when  the  action  is  based  upon  a 
treaty  (p.  314-15) ;    when  an  invitation  is  freely  extended  by  the 
sovereign,  but  he  qualifies  this  in  cases  where  the  state  is  divided 
into  two   contending   factions    (p.  323).     Although   Moser   in  his 
discussion   of  the    relations   of   states,   due   to   religious   matters 
(p.    184-312;     cf.    157-183)    excludes   interference   upon    religious 
grounds    (p.   166-7   passim)    he  recognizes  the  right  to  intervene 
when  necessary  to  protect  individuals  from  persecution  for  their 
religion    (p.    184)    and    he    declares    that    "when    one    or    more 
religions  beside  the  state  religion  are  permitted  or  tolerated  in 
a  state,  the  state  religion  may  not  make  use  of  its  privileges  to 
injure  the  legally  acquired  rights  of  the  other  religions,  either  in 
spiritual    or    worldly    matters"    (p.    167).     In   general    he   recog- 
nizes the  right  of  intercession  and  peaceful  representation  by  a 
foreign  state  to  prevent  persecution  (p.  96-7)  and  he  reproduces 
by   way   of  precedent   and   illustration   the   very   forcible   instruc- 
tions addressed  by  Lord  Harrington  March  5,  1745,  to  the  British 
Minister  at  Vienna  to  continue  to  make  the  strongest  efforts  to 
prevail  upon  the  Queen  to  revoke  the  decree  expelling  the  Jews 
from  Prague.     It  appears  that  the  Netherlands  had  likewise  made 
representations  against  this  act.     (p.  96-7,  Moses  cites  Mereure; 
1745,   Vol.    I,   p.    363).     This   is    a    clear   and    early    instance    of 
humanitarian   action  in   favor  of  the   Jews.     In  this  connection 
we  may  refer  to  Moser 's  recognition  of  the  right  of  each  sovereign 
state  to  receive  within  its  own  territory  fugitives  who  have  left 
their   native   land   because   of   persecutions   on    account    of   their 
religion   or   beliefs    (p.   176-8).      Another  ground   of   intervention 
which    Moser    enumerates    is    when    disorder    and    anarchy    cause 
injury  or  constant  apprehension  to  neighboring  states   (p.  320), 
or  when  there  exist  circumstances  which  justify  apprehension  of 
attack    (prevention).     Upon   this  head    Moser   remarks   that   the 
states  of  Europe  would  not  be  justified  in  placing  too  great  a 
reliance   upon   their  neighbors,  but  he   thinks  that  the  peaceful 
intentions    of    republics    are    guaranteed    by    their    constitutions, 
their    [lack    of]    strength    and    their    interests,    and    proved    by 
experience  (p.  400).     An  interesting  discussion  of  the  obligation 
of  the  sovereign,  in  the  interest  of  the  preservation  of  peace,  to 
try  to  give  the  requisite  assurances  to  quiet  the  apprehension  of 


BIBLIOGRAPHY  517 

his  neighbors  (p.  319-406)  is  supported  by  instances  drawn  from 
the  practice  of  states  (p.  406-420).  Moser's  positive  method  is 
that  which  has  been  followed  by  later  writers  and  the  fact  that 
he  intends  to  and  does  derive  his  views  of  intervention  from 
existing  state  practice  places  him  as  an  early  authority  of  the 
highest  rank. 

Ninagawa,  A. 

Intervention. 

in  Japanese  Journal  of  International  Law, 
November  1912,  vol.  XI. 

Manuscript  English  translation  may  be  consulted  in  the 
Carnegie  Endowment  for  Peace  Library,  2  Jackson  Place. 

Ninagawa  only  tries  to  get  a  definition  for  intervention.  He 
sees  the  confusion  of  the  authorities,  but  does  not  himself  reach 
a  perfectly  clear  comprehension  of  intervention. 

Nys,  Ernest. 

Le  concert  europeen  et  la  notion  du  droit  inter- 
national, 
in  Revue  de  droit  international,  1899. 

Oliva,  Giuseppe, 

Del  diritto  d'intervento. 
Messina,  1881.     285  and  appendix  45  p.,  8°. 

[New  York  Bar  Association  Library 
and  Harvard  Law  Library] 

Olivi,  Luigi,  1847— 

La  questione  sul  diritto  d'intervento.  Dinanzi 
alia  scienza. 

in  Archivio  giuridico,  Pisa,  1880,  vol.  24,  p.  560- 
574. 

[In  Library  of  Congress,  Law  Periodicals] 

Oppenheim,  Lassa  Francis  Lawrence,  1858-1919. 

International  Law,  a  Treatise. 
3d  ed.,  London,  1912.     2  vols.     [3  ed.,  vol.  1, 1920, 
edited  by  Ronald  F.  Roxburgh.] 

12-9559  Additions  JX3264.I6  1912 


518  INTERVENTION 

F.  W. 

Cromwell  on   Foreign  Affairs,   together  with 
four  essays  on  international  matters,  one  of  which 
is  entitled:    " Intervention  Among  States." 
London,  C.  J.  Clay  and  Sons,  1901. 

2-12277  DA45.P2 

The  third  paper  is  entitled  ' '  Intervention  Among  States. ' ' 
The  author  contributes  an  original  investigation  of  the  subject. 
He  has  examined  the  principal  authorities  and  perceives  how 
impossible  it  is  to  find  any  guiding  consensus  of  opinion.  His 
own  analysis  and  classification  is  suggestive  and  should  not  be 
overlooked.  It  is,  however,  based  upon  the  somewhat  dangerous 
presumption  that  the  affairs  of  the  states  grouped  in  international 
society  must  in  certain  respects  bear  close  analogies  to  individuals 
in  a  modern  state.  Proceeding  on  this  basis,  Payn  points  out 
that  a  large  body  of  the  individuals  of  our  state  do  not  directly 
manage  their  own  affairs  since  they  are  under  a  legal  disability. 
He  divides  them  into  two  classes:  Those  who  are  the  normal 
subjects  of  this  disability, — such  as  women  and  children, — and 
the  abnormal, — such  as  imbeciles,  convicts,  and  bankrupts.  The 
application  of  this  classification  to  various  states  leads,  he  thinks, 
to  the  conclusion  that  the  interventions  against  Turkey  in  1840 
and  against  China  in  1900  were  in  the  nature  of  action  taken  to 
restrain  dangerous  lunatic  states.  Another  series  of  interventions 
Payn  considers  to  have  been  undertaken  on  behalf  of  the  minor 
states  in  different  stages  of  weakness,  imbecility,  and  decay. 
The  list  of  instances  which  he  enumerates  includes  the  intervention 
in  Portugal  in  1826,  in  Greece  in  1827,  in  Belgium  1830-32, 
Quadruple  Alliance  in  Portugal  1834,  in  Turkey  1840,  1854  and 
1877,  and  he  reaches  the  conclusion  that: 

"All  the  cases  in  this  group  have  one  feature  in  common. 
The  interventions  were  undertaken  on  behalf  of  minor  states  in 
different  stages  of  weakness,  imbecility  and  decay,  and  in  every 
case  it  is  arguable  that  the  intervention  was  in  the  main  for  the 
benefit  of  the  State  in  the  affairs  of  which  it  occurred,  and  was 
salutary  in  its  effects  on  that  State. ' ' 

Mr.  Payn  sums  up  his  views  as  follows: 

"In  order  to  discuss  the  subject  with  even  the  possibility  of 
arriving  at  any  tangible  and  profitable  result,  we  submit  that 
three  stages  are  necessary,  viz.:  (1)  a  consideration  of  the 
analogy  which  undoubtedly  exists  between  the  phenomena  of  the 
lives  of  individuals  in  a  modern  civilized  State;  (2)  a  con- 


BIBLIOGRAPHY  519 

sideration  of  the  principal  modern  instances  of  intervention  as 
illustrating  that  analogy;  (3)  a  deduction  of  the  principles 
of  intervention  based  upon  that  analogy. ' ' 

Even  if  we  are  not  ready  to  give  to  the  analogy  between  states 
and  individuals  all  the  weight  that  the  author  believes  it  is 
entitled  to,  we  must  agree  that  he  has  adopted  the  correct  course 
in  basing  his  principles  upon  a  careful  consideration  of  the 
instances.  He  cites  as  authorities,  Hall,  Walker,  Arntz,  and 
criticizes  the  "Chinese  Wall"  theory  of  state  life  advocated  by 
Carnazza  Amari,  pp.  75-78.  He  also  commends  the  book  of 
Chancellor  Kent,  p.  78. 

Phelps,  Edward  John,  1822-1900,  [formerly  American 
Minister  to  Great  Britain]. 

Letter  on  Cuban  Intervention, 
in  Neiv  York  Herald,  March  9,  1898. 

This  article  is  important,  not  as  a  correct  appreciation  of  fact 
or  principle,  but  because  of  the  support  it  lent  to  the  prejudices 
of  writers  on  the  Continent  who  condemned  the  American  inter- 
vention. For  an  indication  of  its  contents,  see  under  Cuba, 
1895-98.  Mr.  Phelps  was  appointed  Professor  of  Law  at  Yale 
University  and  was  elected  President  of  the  American  Bar 
Association. 

**Phillimore,  Sir  Robert  Joseph,  bart,  1810-1885. 
Commentaries  upon  International  Law. 
London,  1854,  4  vols.,  22  cm.     3d.     ed.  1879-89. 

10-15576  JX2565.C4 1879 

Intervention  is  discussed  in  1st  ed.,  vol.  1,  Part  III,  Ch.  X, 
XI,  XVII,  Part  IV,  ch.  I,  p.  433-483,  2d  ed.,  1871,  Preface,  p. 
VII-XV  This  work  is  very  useful  as  a  collection  of  material 
and  in  part  for  its  discussion,  but  Phillimore  does  not  grasp  the 
principles  of  intervention.  He  even  confuses  mediation  and 
intervention,  vol.  I,  p.  442-3.  From  his  discussion  of  intervention 
on  religious  grounds  it  is  hard  to  discover  what  view  he  takes. 
Of  self-help  he  has  given  us  an  excellent  discussion. 

**  Phillips,  Walter  Alison,  1864— 

The  Confederation  of  Europe;  a  study  of  the 
European  alliance,  1813-1823,  as  an  experiment 
in  the  international  organization  of  peace.  [Six 
lectures  delivered  in  the  university  schools, 


520  INTERVENTION 

Oxford,  at  the  invitation  of  the  delegates  of  the 
common  university  fund.    Trinity  term,  1913.] 
London,  Longmans,  Green  &  Co.,  1914.    xv-\-315 
p.,  231/2  cm. 

14-8401  D363.P5 

Mr.  Phillips  has  also  written  a  concise  statement  (about  500 
words)  of  the  Balance  of  Power  in  the  Encyclopaedia  Britannica, 
11  ed.,  vol.  Ill,  p.  235. 

Poucel,  Benjamin,  1807-1872. 

Les  otages  de  Durazno ;  souvenirs  du  Rio  de  la 
Plata  pendant  1 'intervention  anglo-franc.aise  de 
1845  a  1851. 

Paris,  A.  Faivre;  Marseille,  Camoin,  1864.     vii-\- 
351  p.,  25  cm. 

3-11096  F2846.P87 

Not  important. 

Pourcher,  Charles. 

Essai  d 'etude  du  droit  d 'intervention  en  Tur- 
quie  applique  au  probleme  balkanique.  [Disser- 
tation, University  of  Paris.] 

Clermont  Ferraud,  Dumont,  1904.     208  p.,  24  cm. 
[Columbia  University  Library] 

Pradier-Fodere,  Paul  Louis,  Ernest,  1827-1904. 

Traite  de  droit  international  public  europeen 
&  americain,  suivant  les  progress  de  la  science  et 
de  la  pratique  contemporaines. 
Paris,  1885-1906,  8  vols. 

6-32700  JX2725.T7 1885 

This  author  devotes  a  part  of  Vol.  I,  (p.  546-678)  to  the 
discussion  of  intervention.  He  shows  that  he  has  thoroughly 
covered  the  literature  and  that  he  is  conversant  with  the  important 
instances,  but  his  treatment  is  superficial.  He  adds  little  or 
nothing  to  the  understanding  of  the  principles,  at  the  same  time 
ho  a  voids  many  of  the  errors  and  pitfalls. 


BIBLIOGRAPHY  521 

•H-Pradt,  Dominique  Georges  Frederic  de  Riom  de  Prol- 
hiac  de  Fourt  de,  abp.  of  Machlin,  1759-1837. 

Le  vrai  systeme  de  1 'Europe   relativement  a 
1'Amerique  et  a  la  Grece. 
Paris,  1826.     8°. 

This  is  a  plea  for  the  recognition  of  the  Latin  American 
republics  and  the  support  of  Greece  to  achieve  her  independence. 
Ch.  XX,  (p.  128-47)  is  entitled  "Le  droit  d 'intervention. " 

XXXI  ' '  Du  droit  d  'intervention  dans  les  affaires  de  la  Grece. ' ' 
The  theory  of  ' '  moral  contagion ' '  is  discussed  and  intervention 
on  this  ground  condemned  (p.  142).  The  grounds  of  intervention 
are  summed  up  and  their  justification  denied  (p.  146).  This 
work  is  more  than  the  political  pamphlet  it  appears  to  be.  The 
references  are  to  a  copy  in  the  New  York  Public  Library  bound 
with  Pradt's  "Guaranties  a  demander  a  1'Espagne, "  Paris  1827. 
Von  Listz  refers  to  "Les  Cabinets  et  les  peuples  depuis  1815 
jusqua  la  fin  de  1822"  (3  ed.)  Paris  1823.  The  Library  of 
Congress  lacks  this  but  has  Pradt's  "L 'Europe  et  L'Amerique 
en  1821,"  Paris  1822.  [Card  8-10921,  Class  D.383.p6.] 

Quabbe,  Georg. 

Die  Volkerrechtliche  Guarantie  [A  portion  of 
Staats-    und    Verwaltungsrecht    by    Brie    and 
Fleischmann]. 
Breslau,  1911. 

11-14728  JX4171.A863 

This  work  was  awarded  a  prize  by  the  Law  faculty  of  the 
University  of  Breslau  (1909).  The  author  supplies  a  valuable 
bibliography  (p.  VII-IX).  He  adds  some  notes  to  this  (p.  6-8). 

Quesada,  Antonio  Miro. 

La  intervencion  Americana  en  Cuba.     [Disser- 
tation, Universidad  de  Lima.] 
Lima,  Peru.     20  p.,  18  cm. 

[State  Department  Library, 
Cuban  Pamphlets  5,  No.  16] 

I  did  not  think  it  necessary  to  consult  this  work. 

Quintana,  Manuel. 

Discursos  Parlamcntarioa  sobro  ol  dorecho  de 
intervencion. 


522  INTERVENTION 

• 

Buenos  Aires,  Boulosa,  1902. 

[Harvard  College  Library,  SA5016.13] 

I  did  not  think  it  necessary  to  examine  this  work. 

"R.  Q."  [Pseudonym]. 

An  important  review  of  Kamptz's  work, 
in  Hermes   [a  German  periodical],  vol.  XI,  p. 
142-156. 

7-3737  AP30.H6  Vol.11 

Reynolds,  William  B. 

Intervention. 
Fort  Leavenworth,  1898.    21  p. 

[New  York  Public  Library] 

I  did  not  think  it  necessary  to  consult  this  work. 

***Rivier,  Alphonse  Pierre  Octave,  1835-1898. 

Principes  du  droit  des  gens. 
Paris,    A.    Rousseau,    1896.    2    vols.,    22y2    cm. 
Rivier  also  published  in  Germany,  1889,  his  Lehr- 
buch  des  Volkerrechts. 

2-19974  JX2739.P9 

Kivier  has  a  reputation  deservedly  high  in  all  countries.  The 
student  should  not  fail  to  consult  him.  Westlake  (vol.  I,  p.  306) 
says  of  Rivier,  "...  one  of  the  most  accomplished  jurists  who 
have  employed  themselves  on  international  law. "  J.  B.  Moore 
(Principles,  p.  208),  "...one  of  the  most  eminent  publicists  in 
Europe. ' ' 

•H-frRobin,  Raymond. 

Des  occupations  militaires  en  dehors  des  occu- 
pations de  guerre  (etude  d'histoire  diplomatique 
et  de  droit  international).  [Doctoral  disserta- 
tion reprinted  with  introduction  by  Louis 
Renault,  p.  i-iv.] 

Paris,  L.  Larose  and  L.  Tenin,  1913.    viii+824  p., 
26  cm. 

15-7007  JX5003.R6 


BIBLIOGRAPHY  523 

University  of  Paris  theses,  published  the  same  year,  with  a 
preface  by  Louis  Benault,  pp.  I-V. 

This  is  the  most  complete  treatment  of  the  subject  of  occupa- 
tion with  which  we  are  familiar.  M.  Eobin's  careful  study  of 
those  international  incidents  which  have  led  to  occupation  of 
foreign  territory  is  of  great  assistance  for  the  study  of  inter- 
vention. Although  the  author  has  not  devoted  himself  par- 
ticularly to  the  matter  of  intervention,  he  has  given  it,  inci- 
dentally, his  careful  consideration.  A  full  index  and  table  of 
contents  makes  it  easy  to  locate  the  material.  Professor  Louis 
Renault,  who  never  was  given  to  mere  compliment,  is  enthusiastic 
in  his  praise  of  this  volume,  which  he  calls  a  mine  of  informa- 
tion. (See  Preface  by  Louis  Eenault.)  We  are  especially  in- 
debted to  M.  Eobin  for  his  accounts  of  those  instances  which 
involve  occupation  for  the  guarantee  of  payment,  occupation  or 
intervention  as  a  mandatory,  and  collective  occupation  or 
intervention. 

*Rolin-Jaequemyns,  Gustave,  1835 — 

Le  droit  international  et  la  phase  actuelle  de  la 
question  d 'orient  [International  Law  and  the 
present  situation  of  the  Near  Eastern  question], 
in  Revue  de  droit  international  et  de  legislation 
comparee,  1876,  vol.  8,  pp.  295-385. 

1-7465  JX3.E4.Vol.8 

A  very  important  study  which  must  have  exercised  some  influ- 
ence upon  the  action  of  the  powers  at  the  time.  E-J  considers 
the  situation  in  the  Near  East  as  a  menace  to  the  peace  of  Europe, 
and  concludes  (p.  347)  that  the  powers  acting  collectively  derive 
from  history  and  from  treaties  the  right  to  unite  to  preserve 
the  peace  of  Europe  and  to  protect  the  interests  of  humanity. 
This  study  elicited  from  Professor  Arntz  a  valuable  letter  which 
Eolin-Jaequemyns  publishes  (ibid,  p.  675-682)  with  further  dis- 
cussion. [See  under  Arntz.]  Eolin-Jaequemyns  would  seem  to 
place  the  Near  East  in  a  special  category  in  regard  to  the  right 
of  intervention.  Hall  (4  ed.,  §  95,  p.  308,  note)  criticizes  this 
view  when  set  forth  by  the  same  author  in  regard  to  the  Graeco- 
Turkish  conflict  of  1885-6.  (Revue  de  droit  international,  vol. 
18,  p.  603.) 


524  INTERVENTION 

•H-Rolin-Jaequemyns,  Gustave,  1835— 

Note  sur  la  theorie  du  droit  d 'intervention, 
in  Revue  du  droit  international  et  de  legislation 
comparee,  1876,  vol.  8,  p.  673-682. 

1-7465  JX3.R4.Vol.8 

In  addition  to  the  preceding  article  which  was  called  forth  by 
the  letter  of  Professor  Arntz  herein  printed  with  further  dis- 
cussion by  Bolin-Jaequemyns. 

Rolin-Jaequemyns,  Gustave,  1835— 

La  question  d 'orient  en  1885-86. 
in  Revue  du  droit  international  et  de  legislation 
comparee,  1885,  vol.  18,  pp.  378-432,  506-535;  con- 
tinued under  the  title,  Le  conflit  greco-turc  en 
1885-86,  ibid,  p.  591-626. 
1-7465  JX3.R4.Vol.18 

Discusses  collective  intervention  and  the  control  of  the  Balkans 
by  the  concert  of  Europe.  Blames  the  jealousies  of  powers  for 
unsatisfactory  condition.  Considers  that  collective  intervention  in 
the  Orient  is  on  a  different  place  from  elsewhere  (p.  605).  Hall 
(4  ed.,  §  95,  p.  308,  note)  criticizes  this  view. 

****  Rossi,  Pellegrino. 

Intervention. 

in  Archives  de  droit  et  de  legislation,  (Brussels) 
1837,  vol.  I,  p.  353-375. 

[In  Library  of  Congress,  Law  Periodicals] 

Written  apropos  of  the  appearance  of  Wheaton's  Elements 
of  International  Law,  London,  1836.  This  brief  study  of  the 
theory  and  practice  of  intervention  is  to  be  ranked  with  that  by 
Senior  as  among  the  very  best.  The  juridical  basis  for  inter- 
vention is  laid  down  in  a  masterly  fashion.  Although  the  inci- 
dents are  treated  with  a  too  evident  bias  in  favor  of  the  Monarchy 
of  July,  every  word  is  illuminating.  Everything  considered,  it  is 
perhaps  the  discussion  of  intervention  which  has  best  known  how 
to  insist  upon  the  fullest  respect  for  the  principles  of  international 
law  without  disregarding  the  reasonable  requirements  of  practical 
statecraft.  Hidden  away  in  a  little  known  and  short  lived 
magazine  this  valuable  article  appears  to  have  escaped  the  notice 
of  all  but  a  few  investigators. 


BIBLIOGRAPHY  525 

•H-H-Rotteck,  Hermann  Rodecker  von,  1816-1848. 

Das  Recht  der  Einmischung  in  die  inneren 
Angelegenheiten  eines  fremden  Staates  vom  ver- 
nunftrechtlichen,  historischen  und  politischen 
Standpunkte  erortert. 

Freiburg  i.  B.,  A.  Emmerling,  1845.       xxviii-\- 
104  p.,  2iy2  cm. 

10-5804  JX4481.R7 

This  work  seems  to  be  the  first  to  undertake  a  systematic  and 
comprehensive  study  of  intervention.  Eotteck  defines  interven- 
tion by  the  postulate,  "No  state  has  a  right  to  intermeddle  in 
the  internal  (that  is  the  constitutional)  affairs  of  another  state. ' ' 
(p.  7;  cf.  p.,  16-17.)  He  enumerates  the  alleged  exceptions 
(p.  10-11),  and  in  the  following  pages  (11-47),  takes  them  up 
seriatim.  He  attempts  to  refute  them  or  to  show  that  they  are 
not  really  exceptions.  The  remainder  of  the  work  examines  the 
incidents  which  have  occurred,  and  discusses  the  primacy  of 
the  great  powers.  Rotteck  denies  the  right  to  intervene  on  the 
ground  that  changes  in  a  neighboring  state,  constitute  a  danger 
for  internal  affairs  (p.  22-3).  In  discussing  the  doctrine  of 
necessity  (p.  20-25),  he  says  that  necessity  does  not  make  legal, 
but  excuses  violations.  Humanitarian  intervention  should  be 
considered  as  a  violation  of  law,  but  sometimes  excused,  or  even 
applauded,  as  we  excuse  a  crime  (p.  36).  Bernard,  Mill,  and 
Hall  have  adopted  this  latter  doctrine.  Berner  classes  this  as 
one  of  the  best  treatments.  Rotteck,  he  says,  has  shown  in- 
telligence and  learning,  but  places  too  much  emphasis  on  the 
principle  of  non-intervention.  I  would  add  that  Rotteck  is 
remarkably  fair,  but  not  a  close  reasoner. 

****Rotteck,  Karl  Wenzeslaus  Rodecker  von,  1775-1840. 
[Grossherz,  Bad.  '  Hofrath  und  Professor.] 

Lehrbuch  des  Vernunftrechts  und  der  Staats- 
wissenschaften. 

Stuttgard,  Gebruder  Franckh,  1829-35.     4  vols., 
21  cm. 

10-23478t  JC233.R85 

Berner  rates  it  as  one  of  the  most  important  works  taking  into 
account  the  historical  development  and  fundamental  principles. 
Vol.  Ill  is  devoted  in  part  (p.  1-166)  to  a  study  of  foreign 
relations  and  international  law. 


526  INTERVENTION 

**  Rougier,  Antoine. 

Les  guerres  civiles  et  le  droit  des  gens. 
Paris,  Larose,  1903.    569  p.,  8°. 

6-27289  JX4541.R7 

Intervention  in  civil  wars  is  discussed,  pp.  315f. 

Rougier,  Antoine. 

L 'intervention  de  1 'Europe  dans  la  question  de 
Macedoine. 

in  Revue  generate  du  droit  international  public, 
1906,  vol.  XI U,  p.  178-200. 
10-31105  JX3.R56.Vol.13 

*** Rougier,  Antoine. 

La  theorie  de  1 'intervention  d'humanite. 
in  Revue  generate  du  droit  international  public, 
1910,  vol.  XVII,  p.  468-526. 
10-31105  JX3.R56.Vol.17 

Is  a  very  thorough  consideration  of  the  question  which  does 
much  to  clear  up  the  theory.  Rougier  first  shows  the  weakness 
in  the  postulate  of  the  absolute  independence  and  equality  of 
States,  and  consequently  overcomes  the  strongest  argument  in 
support  of  the  doctrine  of  Non-intervention.  He  then  examines 
whether  there  is  any  law  of  humanity  in  support  of  which  inter- 
vention may  be  undertaken  and  finds  it  in  the  law  of  solidarity. 
He  next  discusses  who  may  intervene  and  well  says  that  the 
generally  accepted  idea  of  collective  intervention  adds  nothing 
to  the  justice  of  the  action.  Finally,  he  advocates  intervention 
by  a  disinterested  power.  He  does  not  seem  to  consider  that 
such  a  requirement  would  remove  intervention  from  practical 
politics. 

The  various  instances  of  intervention  on  the  ground  of  humanity 
are  noted  and  tersely  analyzed.  The  article  is  of  first  rate 
importance  for  the  study  of  this  part  of  the  subject. 

**  Rougier,  Antoine. 

Maroc:  La  question  de  1 'abolition  des  supplices 
et  Pintervention  europeenne. 
in  Revue  generale  de  droit  international  public, 
1910,  vol.  XIX,  p.  98-102. 

10-31105  JX3.R56.Vol.19 

I  have  translated  a  portion  of  this  in  the  text.     See  $  8  (d). 


BIBLIOGRAPHY  527 

Royal  Commission:  See,  Fugitive  Slaves.    Report  on, 
1876. 

*  Russell,  Bertrand  Arthur  William,  1872.  [M.  A., 
F.  R.  S.,  Sometime  Fellow  and  Lecturer  in  Trinity 
College,  Cambridge.] 

Why  Men  Fight,  A  Method  of  Abolishing  the 
International  Duel. 
New  York,  1917,  272  p.,  19y2  cm. 

17-1513  HN389.R96 

Written  mainly  before  1915,  to  judge  by  the  footnotes.  Eussell 
makes  a  valuable  contribution  to  the  study  of  the  causes  of  war 
and  the  means  to  avoid  it.  This  he  finds  in  a  substitution  of 
creative  "impulses"  (instincts)  for  "impulses  of  possession." 
In  the  main,  it  is  a  fair  and  objective  study.  Nevertheless, 
the  author  seems  to  take  for  granted  that  all  men  condemn  the 
competitive  evolution  of  war,  which  Steinmetz  considered  the 
purpose  and  justification  of  war,  almost  its  sanctifieation.  Kussell 
is  the  most  objective  of  the  subjective  pacifists  I  have  encountered. 
No  student  of  politics  should  fail  to  read  this  work. 

Russell,  John  Russell,  1st  earl,  1792-1878. 

Public  address  discussing  policy  of  government 
relative  to  intervention, 
in  London  Times,  September  28,  1863. 

Discusses  Polish  question,  and  excuses  failure  of  Great  Britain 
to  intervene;  declares  intervention  in  Mexico  was  for  the  pro- 
tection of  British  rights  only;  conduct  towards  United  States 
neutral  and  fair.  Cited  by  Abdy's  Kent,  p.  48. 

*Russell,  John  Russell,  1st  earl,  1792-1878. 

An  Essay  on  the  History  of  the  English  Gov- 
ernment and  Constitution  from  the  reign  of  Henry 
VII  to  the  Present  Time. 

New  edition,  London,  Longmans,  Green  &  Co., 
1865. 

[Harvard  Law  Library] 

Certain  phases  of  intervention  are  discussed  in  the  introduction 
(p.  Irxxi-xciii),  and  Russell  makes  an  attempt  at  definition 


528  INTERVENTION 

(p.  Ixxi-lxxii).  See  criticism  of  this  by  Stapleton  (p.  10-15), 
who  perhaps  misunderstands  Russell 's  careless  language.  Russell 
discusses  Denmark's  rejection  of  England's  suggestions  for  com- 
promise (p.  xcii) ;  but  compare  Sir  Robert  Morier  (vol.  I, 
p.  385-392),  who  gives  the  real  reason  why  Denmark  refused. 

Salvioli,  Giuseppe,  1857- 

Le  concept  de  la  guerre  juste  d'apres  les  ecri- 
vains    anterieurs    a    Grotius.      [Translated    by 
Georges  Hervo.] 
Paris,  1918,  128  p.,  17  cm. 

19-19535  JX4508.S3 

Schonborn,  Walther,  1883— 

Die  Besetzung  von  Veracruz   (zur  Lehre  von 
den  volkerrechtlichen  Selbsthilfeakten)  mit  einem 
Anhang:    Urkunden  zur  Politik  des  Prasidenten 
Wilson  gegeniiber  Mexiko. 
Berlin  [etc.},  W.  Kohlhammer,  1914. 

16-15253  F1234.S36 

Schubert. 

Ueber  die  Lehre  der  politischen  Intervention. 
Cited  by  H.  von  Kotteck  (Recht  der  Einmischung 
1845),  p.  8. 
Kdnigsberg,  1831. 

I   was  unable  to  consult  this  work. 

****Senior,  Nassau  William,  1790-1864. 

Review  of  Wheaton's  International  Law. 
in  Edinburgh  Review,  1843,  vol.  156,  p.  334-358. 

AP4.E3  Vol.156 

In  an  article  in  the  Edinburgh  Review,  Mr.  Nassau  Senior 
discusses  Wheaton  's  book  which  had  recently  appeared.  The 
article  is  more  than  a  review.  It  is  a  valuable  commentary  on 
certain  portions  of  international  law.  Mr.  Senior  devotes  especial 
attention  to  the  question  of  intervention  and  discusses  the  action 
taken  to  preserve  the  balance  of  power  and  to  dictate  in  regard 
to  internal  affairs.  He  points  out  that  the  former  is  the  weapon 


BIBLIOGRAPHY  529 

of  the  weak  against  the  strong  and  is  difficult  to  organize.  From 
this,  he  concludes,  it  is  not  likely  to  be  often  resorted  to  or 
abused.  Interference  in  the  internal  affairs  is,  on  the  contrary, 
the  weapon  of  the  strong  against  the  weak.  Mr.  Senior  discusses 
several  instances  in  European  history  and  reaches  the  following 
conclusion  on  pp.  365-66: 

"It  does  not  appear  that  interference  for  the  mere  purpose 
of  preventing  the  oppression  of  subjects  by  their  prince,  is  now 
held  lawful  by  any  nation 

"On  the  other  hand  it  appears  to  be  the  opinion  of  Eussia, 
Austria  and  Prussia,  that  the  rights  of  a  sovereign  against  his 
subjects  are  whatever  he  may  think  fit  to  claim 

' '  England  admits  the  validity  of  every  established  government, 
whether  depending  on  usage,  on  popular  revolt,  or  on  royal 
usurpation.  Subject  to  the  universal  exception,  that  every  state 
has  a  right  to  protect  itself  against  great  mischief,  or  even 
imminent  danger,  arising  out  of  the  domestic  affairs  of  another, 
she  denies  that  international  law  allows  one  state  forcibly  to 
interfere  in  the  internal  affairs  of  another,  on  any  pretext  or 
to  any  extent  whatever.  She  denies  that  third  parties  can  law- 
fully interfere  to  force  a  people  to  obey  their  sovereign;  as  she 
denies  that  they  can  lawfully  interpose  to  force  a  sovereign  to 
respect  the  liberties  of  his  people." 

Senior's  discussion  is  one  of  the  best  which  has  appeared.  It 
probably  has  not  exerted  as  large  an  influence  as  it  deserves 
because  the  back  files  of  a  magazine  are  not  always  accessible, 
but  he  is  cited  by  several  authorities  (Moore's  Digest  VI:  3; 
Creasy,  p.  297). 

•H-Snow,  Alpheus  Henry,  1859-1920. 

The  Question  of  Aborigines  in  the  Law  and 
Practice  of  Nations. 

Washington,  D.  C.,  Government  Printing  Office, 
1919,  218  p.,  23y2  cm. 

20-13103  JV305.S6 

See  Chapter  XIV,  p.  187-201,  "The  Doctrine  of  'Intervention 
for  Humanity'  and  its  Effect  on  the  Development  of  the  Law  of 
Nations  regarding  Aborigines." 

Soule,  Pierre,  1802-1870. 

Speech  on  Non-intervention,  in  the  U.  S.  Senate, 
March  22,  1852. 

34 


530  INTERVENTION 

Washington,  J.  T.  Towers,  1852.    46  p.,  22%  cm. 

10-25145  E429.S72 

Recalling  various  precedents  in  American  diplomatic  history, 
Soul6  argues  that  the  United  States  should  vigorously  oppose  the 
action  of  Great  Britain  in  policing  the  sea  about  Cuba  to  prevent 
the  landing  of  hostile  expeditions  on  that  island. 

Sproxton,  Charles,  1890-1917. 

Palmer ston  and  the  Hungarian  Revolution.  [A 
dissertation  which  was  awarded  the  Prince  Con- 
sort prize,  1914.] 

Cambridge,  University  Press,  1919.    xi+148  p., 
front  (port.)  20  cm. 

20-286  DB936.S7 

An  excellent  account  of  the  political  history  of  the  Hungarian 
Revolution  and  the  connected  question  of  the  refugees  in  Turkey. 
Palmerston's  fear  that  a  weakened  Austria  would  remove  a 
counterpoise  (pp.  37,  77)  is  given  as  the  motive  of  his  refusal  to 
oppose  Russian  interference.  Palmerston  was  consistent  in  sup- 
porting Italy  against  Austria  since  he  considered  Italy  a  weak- 
ness for  Austria  (p.  38).  Napoleon  III  refusal  to  intervene  was 
due  to  his  desire  to  secure  the  support  of  the  Northern  powers 
by  a  revision  of  the  treaties  of  1815  (pp.  99-100)  and  on  the 
very  eve  of  invading  Hungary  Nicholas  declared  he  would  recognize 
the  French  Republic  (p.  101).  Responding  to  the  pressure  of 
public  opinion,  Palmerston  exerted  pressure  on  Turkey  to  prevent 
the  extradition  and  to  secure  the  liberation  of  the  refugees, 
(p.  111.) 

Stambler,  Bernard. 

L'histoire  des  Israelites  roumains  et  le  droit 
d 'intervention.      [Doctoral  dissertation,  Univer- 
sity of  Paris.] 
Paris,  Jouve  et  tie.,  1913.    315  p.,  25  cm. 

15-10261  DS135.R7S7 

Stambler 's  book  is  principally  devoted  to  a  study  of  the  Jews 
in  Roumania  and  the  law  of  nationality.  Intervention  is  con- 
sidered (p.  197-225,  more  especially  the  right  of  the  United  States 
to  protest  (1902)  against  the  treatment  of  the  Jews.  The  author 


BIBLIOGRAPHY  531 

does  not  consider  that  the  action  of  the  United  States  constitutes 
an  intervention,  and  denies  the  right  to  intervene  on  the  grounds 
of  humanity.  The  bibliography  of  the  question  of  the  Jews  in 
Roumania  (p.  309-312)  touches  but  incidentally  works  upon 
intervention.  Eeviewed  in  revue  de  droit  international  et  de 
legislation  comparee  1914,  Vol.  46,  p.  88. 

**Stapleton,  Augustus  Granville,  1800-1880. 

Intervention   and   Non-intervention;     or,   The 
Foreign  Policy  of  Great  Britain  from  1790  to 
1865. 
London,  J.  Murray,  1866.     ix+308  p.,  23  cm. 

10-17440t  JX4478.S8 

Under  the  cover  of  a  scientific  discussion  of  the  principles 
governing  intervention  Stapleton  launches  into  a  bitter  partisan 
attack  upon  Palmerston  and  his  policy  of  interference  in  support 
of  liberalism  on  the  Continent.  But  the  very  method  of  attack 
requires  Stapleton  to  lay  down  the  fundamental  principles  of 
action  undertaken  to  constrain  other  states  to  adopt  a  desired 
course,  and  this  discussion  is  of  real  scientific  value  notwith- 
standing the  errors  into  which  Stapleton  falls.  He  defines  (p.  6) 
the  true  rule  of  non-intervention  [non-interference]  as  follows: 

"No  State  has  a  right  FORCIBLY  to  interfere  in  the  internal 
concerns  of  another  State,  unless  there  exists  a  casus  ~belli  against 
it.  For,  if  every  powerful  State  has  a  right  at  its  pleasure 
forcibly  to  interfere  with  the  internal  affairs  of  its  weaker 
neighbors,  it  is  obvious  no  weak  State  can  be  really  independent. 
The  constant  and  general  violation  of  this  law  would  be,  in  fact$ 
to  establish  the  law  of  the  strongest. 

"This  principle  as  here  laid  down  is  the  true  principle  of 
'non-intervention.'  But,  by  leaving  out  the  word  forcible,  and 
by  then  applying  it,  without  limitation  or  explanation,  much 
confusion  respecting  it  has  arisen. 

"It  is  essential  therefore  that  it  should  be  correctly  defined; 
for,  taking  it  in  the  broad  sense  in  which  it  is  sometimes  taken, 
as  forbidding  all  kinds  of  intervention  in  the  internal  affairs  of 
neighboring  States,  it  is  neither  defensible  in  theory  nor  harmless 
in  practice." 

Stapleton  does  not  perceive  that  intervention  or  interference 
would  have  no  effect  the  moment  that  his  rule  was  sufficiently 
well  recognized  to  restrain  the  action  of  would-be  law-abiding 
states.  His  formula  is  the  reductio  ad  absurdum  which  we  find 
so  frequently  in  the  followers  of  Cobden.  Palmerston  himself 
refuted  this  doctrine  when  in  1832  he  wrote: 


532  INTERVENTION 

"In"  adverting,  therefore,  to  the  affairs  of  Poland,  great 
delicacy  and  caution  will  be  required.  It  would  be  inconsistent 
with  the  power  and  dignity  of  the  British  Empire  to  insist  too 
strongly  upon  points  which,  from  the  considerations  stated  above, 
it  might  be  inexpedient,  if  not  impossible,  to  enforce  by  arms." 
(British  State  Papers,  vol.  37,  p.  1439-1440.) 

We  must,  however,  give  Stapleton  credit  for  perceiving  the 
folly  of  a  general  condemnation  of  all  intervention  or  interference 
which  is  not  undertaken  in  defense  of  clearly  recognized  rights 
(see  discussion  of  political  action  in  our  $$  20-23).  He  is  also 
to  be  commended  for  basing  his  attack  and  his  criticism  upon  a 
careful  analysis  of  the  grounds  of  the  various  instances  of 
intervention.  The  remainder  of  the  book  (pp.  37-308)  discusses 
with  marked  partisan  bias  the  foreign  policy  and  interventions 
of  the  British  Government  from  1790-1865.  The  appendix  (pp. 
279-308)  contains  valuable  documents. 

^Stockton,  Robert  Field,  1795-1866. 

Speech  on  Non-intervention,  delivered  in  the 
U.  S.  Senate,  February  2,  1852. 
Washington,  Printed  by  J.  T.  Towers,  1852.    8  p., 
23  cm. 

19-20271  E429-S86 

Stowell,  E.  C.  and  Munro,  H.  F. 

International  Cases,  Vol.  I,  Peace ;  Vol.  II,  War 
and  Neutrality. 
Boston,  Houghton,  Mifflin  Co.,  1916. 

16-9557  JX68.S8 

Contains  concise  accounts  of  some  of  the  more  important  inci- 
dents of  intervention  and  interference. 

Strauch,  Hermann  [Professor,  Heidelberg]. 

Intervention. 

in  Blimtschli's  Staatsworterbuch  (Loning's  edi- 
tion).    Zurich,  1871,  vol.  II,  p.  274 f. 

9-200741  JA.63.B8 

Cf.  below  this  author's  more  complete  study  of  intervention, 
1879. 


BIBLIOGRAPHY  533 

•H-H-Strauch,  Hermann  [Professor,  Heidelberg].. 

Zur  Interventionslehre ;    eine  volkerrechtliche 
Studie. 
Heidelberg,  1879.     39  p.,  8°. 

[State  Department  Library, 
Harvard  Law  Library, 
Boston  Athenaeum] 

This  little  pamphlet  prepared  in  honor  of  Professor 
Bluntschli's  fifty  years  of  teaching  is  probably  the  most  complete 
and  most  rigidly  scientific  discussion  of  intervention  in  any 
language.  For  Strauch  intervention  is  a  right  of  the  community 
of  states  to  prevent  any  abuse  of  independence  which  endangers 
the  common  security,  including  necessarily  all  serious  violations 
of  the  law  of  nations.  He  recognizes  the  right  of  third  nations 
to  intervene  in  such  cases  as  he  recognizes  the  right  of  individual 
states  to  intervene  in  internal  matters  when  the  latter  are  in  such 
a  condition  as  to  endanger  the  rights  of  other  states. 

But  Strauch  excludes  humanitarian  intervention  because  he 
thinks  such  questions  are  not  matters  which  concern  the  community 
of  states.  Every  state,  however,  is  free  to  check  the  barbarous 
or  inhumane  conduct  of  any  other  state  which  does  not  enjoy 
a  fully  independent  status.  Any  attempt  of  another  state  to 
oppose  such  corrective  action  is,  according  to  Strauch,  a  political 
matter. 

Strezoff,  G. 

L 'intervention  et  la  peninsule  balkanique  [Dis- 
sertation, University  of  Geneva]. 
Geneva,  1893.     252  p.,  23  cm. 

[Columbia  University  Library] 

Tanoviceano,  Jean. 

De  1 'intervention  au  point  de  vue  du  droit  inter- 
national.    [Dissertation,    University    of    Paris. 
Bound    with    and    following    a    dissertation    on 
Roman  Law,  "De  1'infantia."] 
Paris,  1884.     153  p.,  8°. 

[Harvard  Law  Library, 
New  York  Public  Library] 

Holland  (Studies,  p.  174)  says:  "Roumania  in  the  person  of 
M.  Tanoviceano,  has  produced  an  international  jurist  of  no  small 


534  INTERVENTION 

merit.     His  treatise,  De  V intervention,  is  the  best  book  on  the 
subject."     I  cannot  find  that  the  work  is  of  unusual  merit. 

Trevilla  Paniza,  Diego. 

La  intervencion  por  causas  financieras.     [Doc- 
toral dissertation.] 

Granada,  Tip.  P.  Ventura  Traveset,  1910.    71  p., 
21  cm. 

16-3712  JX1393.D8T7 

Discusses  intervention  and  the  Drago  doctrine.  I  did  not 
examine  this  work. 

Trummer,  Dr.  K. 

Anti-Rotteck.      Eine    Reihe    von    Fragmenten 
iiber  des  Prof.  v.   Rottecks  Lehrbuch  des  Ver- 
nunftrechts. 
Hamburg,  1836. 

[Reichstag  Library,  Berlin] 

Cited  by  Heiberg  (p.  15),  who  indicates  that  Trummer  was 
an  advocate  of  wide  latitude  in  interference. 

U.  S. :  Solicitor  of  the  Department  of  State. 

Right  to  Protect  Citizens  in  Foreign  Countries 
by  Landing  Forces. 
See  Clark,  Joshua  Reuben,  Jr. 

Ureria  y  Sanz,  Rafael  de. 

Nuevas  orientaciones  del  principio  de  inter- 
vencion, doctrina  de  Drago. 

Madrid,  Est.  tip.  de  los  hijos  de  R.  Alvarez,  1910. 
71  p.,  24  cm. 

11-25359  JX4481.U8 

A  preliminary  study  of  intervention,  followed  by  a  consider- 
ation of  the  Drago  doctrine.  Good  for  Drago  doctrine,  but  of  no 
particular  value  for  intervention. 

Urien,  Carlos  M. 

El  derecho  de  intervencion  y  la  doctrina  de 
Monroe  (antecedentes  historicos). 


BIBLIOGRAPHY  535 

Buenos  Aires,  Impr.  J.  Peuser,  1898.      174  p., 
171/2  cm. 

9-19546  JX1425.U8 

Valverde,  Antonio  L. 

La  intervencion ;  estudio  de  derecho  inter- 
nacional  publico — con  emprologo  del  Sr.  Eafael 
Montoro. 

Habana,  Ruis  y  hermano,  1902.    x-\-195  p.,  8° . 
Obra  premiada  por  el  colegio  de  abigados  de  la 
Habana  en  el  certamen  de  1900  a  1901. 

[New  York  Library, 
Harvard  Law  Library] 

One  of  the  most  extensive  studies  of  the  text-book  authorities. 
The  author  (p.  74)  concludes  that  the  Italian  school  is  wrong  in 
considering  intervention  as  always  illegal,  but  thinks  intervention 
is  a  political  matter,  and  that  it  is  impossible  to  fix  its  limits 
exactly  as  some  writers  claim  to  do.  The  remainder  of  the  book 
considers  the  instances  of  intervention.  The  study  is  careful, 
but  does  not  add  to  the  understanding  of  the  deeper  problems  of 
the  subject. 

•H-Vattel,  Emmerich  de,  1714-1767. 

The  Law  of  Nations  [Le  droit  des  gens;  ou 
Principes  de  la  loi  naturelle  appliques  a  la  con- 
duite  et  aux  affaires  des  nations  et  des  souverains 
1758],  C.  G.  Fen  wick's  English  translation,  with 
an  introduction  by  Albert  de  Lapradelle. 
Washington,  Carnegie  institution  of  Washington, 
1916.  3  vols.  26  cm.  (Vol.  3  contains  the  trans- 
lation.) [In  Carnegie  Classics  of  International 
Law.] 

16-17762  JX2414.A1  1916 

Ercole. 

Memoria  del  Prof.  Ercole  Vidari.  Del  principio 
di  intervento  e  di  non  intervento. 


536  INTERVENTION 

Milan,  Amminestrazione  del  Politecnico,  1868.  A 
reprint  from  "II  Politecnico."  81  p.  Signed 
Pavia,  December  22,  1867. 

[Harvard  Law  Library] 

This  is  one  of  the  best  of  the  early  studies  of  the  subject,  and 
shows  the  author's  scientific  spirit  by  a  fair  analysis,  at  a  time 
when  the  national  aspirations  of  Italy  were  distorting  men's 
vision,  as  shown  in  Mamiani  's  work. 

Vie,  Louis. 

Des  principales  applications  du  droit  d 'inter- 
vention des  puissances  europeennes  dans  les 
affaires  des  Balkans  depuis  le  traite  de  Berlin  de 
1878  jusqu'a  nos  jours,  fitude  de  droit  interna- 
tional public  et  d'histoire  diplomatique.  [In- 
augural dissertation,  University  of  Toulouse.] 
Toulouse,  Impr.  Lagarde  et  Sebille,  1900.  158 
p.,  4°. 

1-6411  JX4481.V6 

Wachter,  Alfred  von. 

Die  volkerrechtliche  Intervention  als  Mittel  der 
Selbsthiilfe.       [Dissertation    at    Erlanger    Uni- 
versity.] 
Munich,  J.  Kramer,  1911.     67  p.,  8°. 

[New  York  Public  Library 
Berlin  Card,  U.12.946] 

A  painstaking,  but  somewhat  immature  study,  as  shown  by 
the  failure  to  appreciate  the  relative  value  of  the  authorities, 
some  of  the  most  important  of  which  are  omitted.  It  is  not  an 
important  work. 

*  Warner,  Horace  Everett,  1839— 

The  Ethics  of  Force. 
Boston,  Ginn  &  Co.,  1905.     v+126  p.,  20  cm. 

5-19064  JX1953.W36 

"This  little  volume  had  its  origin  in  a  series  of  papers  read 
to  the  Ethical  club  of  Washington,  D.  C.,  at  the  time  just  pre- 
ceding and  following  the  Spanish  war."  ( — Pref.) 


BIBLIOGRAPHY  537 

Library  of  Congress  analysis  of  contents:  I.  Introduction. 
II.  The  ethics  of  heroism.  III.  The  ethics  of  patriotism.  IV. 
Can  war  be  defended  on  the  authority  of  Christ?  V.  Can  war 
be  defended  on  the  grounds  of  reason?  VI.  Some  objections. 

One  of  the  few  rational  discussions  upon  the  theme  of  the 
irrationality  of  war,  by  one  who  knows  from  experience  whereof 
he  speaks. 

Werdenhagen,  Angelius. 

Synopsis  in  sex  libros.  Johan  Bodini  de  Re- 
publica,  tpuroiropfiov  generate  et  necessarium. 
Amsterdam,  1645. 

Esmein,  in  Nouvelle  revue  historique  de  droit  frangais  et 
etranger,  1900,  p.  574,  says  this  author  corrected  Bodin's  logic: 
' '  He  only  admits  the  repression  of  a  tyrant  by  a  neighboring 
king  when  the  territory  of  the  latter  has  been  invaded  by  the 
tyrant. ' '  Esmein  remarks  that  this  is  the  denial  of  all  right 
of  intervention  in  internal  affairs.  We  should  take  note  of  this 
as  an  early  exposition  of  the  doctrine  of  absolute  non-intervention. 

I  have  not  examined  this  work. 

Westlake,  John,  1828-1913. 
Reprisals  and  War. 
in  Law  Quarterly  Review,  April,  1909,  p.  127-136. 

A  very  searching  examination  of  the  principles  governing  the 
use  of  force  without  war.  Also  published  in  The  Collected  Papers 
of  John  Westlake  on  Public  International  Law,  Cambridge  [Eng.], 
1914.  [15-9571  JX2588.C7  1914.] 

Westlake,  John,  1828-1913. 
International  Law. 

Cambridge,  England,  Part  I,  Peace,  1st  ed.,  1904; 
2  ed.,  1910.     Part  II,  War,  1st  ed.,  1907;   2  ed., 
1913. 
11-1990  JX2588.I  6  1910 

These  two  volumes  contain  the  best  and  most  comprehensive 
discussions  of  the  principles  of  intervention.  Westlake  is  the 
student 's  surest  guide.  Especially  important  are  vol.  I,  ch.  XIII, 
"Political  Action  of  States,"  (p.  300-327);  "Self-defense 
[self-help]  on  the  open  sea  in  time  of  peace"  (p.  171-176); 
"Recognition  of  new  states  arising  from  insurrections"  (p.  57f )  ; 


538  INTERVENTION 

vol.  II,  ch.  I,  p.  1-31,  "War  and  forcible  measures  short  of  war;  " 
Ch.  VII,  (p.  190-198),  "The  Theory  of  Neutrality."  It  is 
interesting  to  compare  these  opinions  with  Westlake's  Chapters 
on  the  Principles  of  International  Law,  Cambridge,  1894,  for  we 
see  how  carefully  the  author  had  gone  over  what  he  had  written 
a  decade  before. 

Wharton,  Francis,  1820-1889. 

De     1 'assistance     prete    a     une     insurrection 
etrangere. 
Referred  to  in  Clunet's  Journal,  1883,  p.  375-377. 

Discusses  the  insurrection  in  Naples.  Of  no  particular 
importance. 

*Wheaton,  Henry,  1785-1848. 

Elements  of  International  Law:   with  a  sketch 
of  the  history  of  the  science. 
London,  B.  Fellowes,  1836.    2  vols.,  22  cm. 

5-29661 

In  reviews  of  Wheaton,  Pellegrino  Rossi  and  Nassau  Senior 
have  both  criticized  Wheaton  for  his  defective  treatment  of 
intervention  and  each  critic  has  been  himself  stimulated  to  write 
remarkable  studies  of  this  subject.  Indirectly  we  owe  to  Wheaton 
the  best  discussions  of  intervention  which  have  appeared  in 
English  and  French. 

Wheaton,  Henry,  1785-1848. 

History  of  the  Law  of  Nations  in  Europe  and 
America ;  from  the  earliest  times  to  the  treaty  of 
Washington,  1842. 

New  York,  Gould,  Banks  &  Co.;    [etc.,  etc.}  1845. 
xiv+797  p.,  241/2  cm. 

5-29665  JX2495.H2 1845 

"Originally  written  and  published  in  the  French  language  as 
a  M£moire  in  answer  to  the  following  prize  question  proposed  by 
the  Academy  of  moral  and  political  sciences  in  the  Institute  of 
France:  'Quels  sont  les  progres  qu'a  fait  le  droit  des  gens  en 
Europe  depuis  la  paix  de  Westphalie?'  " — Pref. 


BIBLIOGRAPHY  539 

Wildman,  Richard. 

Institutes  of  International  Law. 
London,   W.   Benning   &   Co.,  1849-50.    2   vols., 
22  cm. 

10-17173t  JX2592.I5 1849 

***Woolsey,  Theodore  Dwight,  1801-1889. 

Introduction  to  the  Study  of  International  Law. 
Boston  and  Cambridge,  J.  Munroe  &  Co.,  1860. 
xvii+486  p.,  19^/2  cm.  Preface  is  dated  May  17. 
6th  ed.,  rev.  and  enl.  by  Theodore  Salisbury 
Woolsey,  New  York,  C.  Scribner's  Sons,  1901. 
xix+527  p.,  21  cm. 

10-17164t  JX2498.I6  1860 

4-4618-4  JX2498.I6  1901 

At  this  period,  so  important  for  the  development,  of  the  law 

•governing    intervention,    this    American    work    takes    advanced 

ground.     Especially  interesting   are    §§    18-23,   41-50;     p.   21-28, 

.18-112.     There  have  been  many  later  editions  of  this  useful  work. 

*** Woolsey,  Theodore  Salisbury,  1852— 

America's  Foreign  Policy. 

New  York,  The  Century  Company,  1898.    x-\-294 
p.,  19  cm. 

98-428-4  Revised.  JX1415.W7 

Is  a  collection  of  articles  on  diplomatic  incidents  considered 
from  the  point  of  view  of  the  principles  justifying  the  action 
taken,  and  therefore  of  great  value  for  a  study  of  the  justifiable 
grounds  for  intervention.  It  is  one  of  the  best  discussions  of 
Intervention  in  Cuba,  (p.  25-100),  and  shows  an  understanding 
of  the  fundamental  principles.  Of  especial  value  is  Professor 
Woolsey 's  consideration  of  humanitarian  intervention. 

*Wright,  Quincy. 

Effects  of  the  League  of  Nations  Covenant, 
in  American  Political  Science  Review,  November, 
1919,  p.  556-576. 

Discusses  the  obligation  to  intervene  to  vindicate  the  law  and 
considers  that  the  establishment  of  such  an  obligation  is  due  to 
the  League  of  Nations. 


540  INTERVENTION 

Zeballos,  E.  C. 

Intervention  armee  europeenne  en  Venezuela  a 
la  suite  de  reclamation. 

in  Bulletin  Argentine  de  droit  international  prive, 
1903.     Vol.  I,  p.  145-177. 

Discusses  the  limits  of  the  right  of  interposition  for  protection 
of  national  rights. 


INDEX 


INDEX 


The  following  page  references  are  mainly  to  subjects,  but  the  pages  where 
authorities  are  quoted  are  also  indicated,  and  the  reference  is  generally 
enclosed  in  parenthesis  when  it  is  no  more  than  a  mere  citation.  The  Bibli- 
ography should  be  consulted  for  critical  notes  in  regard  to  many  of  the 
authorities  herein  listed. 


Aborigines  (see  also  Humanitarian 
Intervention)  :  humanitarian  in- 
tervention to  prevent  abuse  of, 
162-195;  G.  B.  intervenes  to 
prevent  importation  of  Polynes- 
ians into  Peru,  200-203. 

Absolute  independence  (see  also 
Perfect  rights) :  inconsistency  of 
theory  of,  155;  159  n;  212- 
213. 

Abusive:  use  of  property  rights, 
280  /;  insistence  upon  rights; 
obligation  to  refrain  from,  399 
passim,  452 ;  455. 

Adjustment  (see  also  Compro- 
mise) :  obligation  to  agree  to, 
451-453 ;  right  of  intervention 
to  enforce  reasonable,  452-453; 
reasonable  effort  to  reach  amic- 
able, must  precede  recourse  to 
force,  455-456. 

Aerial  jurisdiction:    6-7,  7  n. 

Ahrens:     (280). 

Algeria:     368  n. 

Aliens:  right  of,  to  minimum  of 
security,  154-162 ;  humani- 
tarian intervention  to  secure 
favored  treatment,  154-162. 

Alsace-Lorraine :  settlement  of, 
proposed  by  Mill  (1870),  37  n. 

Alcoholic  liquors:  transit  of,  de- 
nied by  U.  S.,  270-273. 

Amos,  Sheldon:  (47  n)  ;  (56  n)  ; 
126;  314  n;  322  n;  354;  422  n. 

Anarchy:  as  basis  for  interven- 
tion (Poland  1863),  llo  n;  as 
justification  of  intervention  to 
impeach  sovereignty,  350,  351 ; 
doctrine  of  perfect  rights  and 
absolute  independence  leads  to, 
453. 

Anderson :  extradition,  case  of, 
221-226. 

Angary:    401-402. 


Angell,  Norman:  fallacy  of  at- 
tempt of,  to  ignore  prestige,  18. 

Angell,  President:     283   /. 

Apology  (see  also  Expiation) :  of 
France  (1858),  to  G.  B.,  24-25; 
G.  B.  to  V.  S.  (1871)  25;  inci- 
dent at  Wadowice,  26;  honor- 
able nature  of,  26-27;  of  Eus- 
sian  official  for  insult  to  German 
Consul  (1906),  26;  for  seizure 
of  Florida  (1866),  27;  for  in- 
sult to  Peter  the  Great's  Am- 
bassador (1710),  28-30;  in- 
adequacy of  mere,  34;  when 
obligation  to  make,  292. 

Appeal :  from  sovereign  decision 
to  forum  of  opinion  of  all  the 
states,  456. 

Argentina:    Falkland  Islands,  4. 

Armament :  prevention  of  excessive, 
362-366;  futility  of  excessive 
counter-armament,  366-369  n. 

Armenia:    80,  82-85  n;    312-313  n. 

Arntz,  Prof. :  views  as  to  when 
intervention  in  internal  affairs 
is  justified,  52;  53  n;  (55  n)  ; 
282  n. 

Asylum  (see  also  Humanitarian 
asylum) :  to  slaves,  204;  con- 
stitutes a  means  of  carrying 
out  humanitarian  intervention, 
205  n;  humanitarian,  257-277; 
abusive  use  of,  constitutes  con- 
structive attack,  373-378. 

Assistance :  to  foreign  govern- 
ment against  insurrection,  dis- 
cussed 329-345;  justified  by 
older  writers,  329-330;  reasons 
against,  330-331;  constitutes 
unjustifiable  interference,  331; 
invitation  does  not  justify, 
331  n;  justifiable  to  suppress 
common  danger,  332 ;  policy  of 


543 


INDEX 


the  Holy  Alliance,  332;  legiti- 
macy, doctrine  of,  332  /. 
Autonomy:  effect  of  suppressed 
revolt  upon  guarantee  of,  109  n; 
statement  of  right  of,  112-120; 
Poland,  112-120;  Ireland,  120. 

Balance  of  Power:  discussion  of, 
414-431,  G.  B.'s  attitude  regard- 
ing Poland,  89-90  n;  effect  of, 
in  Europe  upon  independence 
of  small  states,  307  n',  parti- 
tion, 415-418;  by  defense  of 
status  quo,  415;  confused  by 
discussion  of  counter-interven- 
tion to  prevent  excessive  satis- 
faction, 420-421;  confused  with 
justifiable  action  by  way  of  pre- 
vention, 422  ;  definition  of  right 
of  intervention  to  preserve,  as 
based  upon  practice,  425-426; 
right  to  prevent  preponderance 
through  sudden  accessions,  425. 

Barios,  President:  cruelties  prac- 
ticed by,  148-149. 

Barrows,  President  David  P;  ef- 
fects of  magnanimity,  16  n. 

Basdevant,  Jules:    140  n;    142  n. 

Base  of  hostile  operation:  afforded 
to  Polish  insurgents,  104;  ob- 
ligation to  prevent,  104  n. 

Bates:  opinion  of  in  Creole  case 
criticized,  229  n. 

Bayard,  Secretary :    160  n. 

Belgian  independence:  nature  of 
action  to  establish,  282-283  n; 
approved  by  Hall,  285;  cited  as 
example,  286 ;  Lawrence 's  re- 
marks on  action  of  concert  re- 
garding, 308  n ;  Hareourt  on 
recognition  of,  429  ?i. 

Belgium,  violation  of:  compared 
with  bombardment  of  Copen- 
hagen, 413. 

Bernard,  Mountague:  (58  n) ;  59- 
60  n;  (64  n);  213;  297  n; 
297-298  n;  (320  n);  379;  386; 
388  n;  431  n;  435  n;  439-441  n; 
444  n. 

Berner:    320  n. 

Bernsdorf,  Ambassador:    323  n. 

Best,  Justice :    222  n. 

Bismarck:  effect  of  Polish  policy, 
96  n;  Polish  policy  denounced, 
103». 

Blachford,  Lord:  justifies  Rus- 
sian intervention  in  Bulgaria, 
134-136  n ;  views  on  slave  trade, 


197  ?i ;     negotiations    negarding 

coolie  labor,   197-198  n.;    defines 

limits    of    religious    propaganda 

abroad,    384-3 85  n;     futility    of 

preventive  wars,  366  n. 
Blackstone:    233. 
Blaine,   Secretary :     438  n. 
Bluntschli :        (55  n)  ;        (220  n) ; 

(330  n);   331  n;    (352  n)  ;  445  n. 
Bodin,  Jean:     (58  n). 
Bolsheviki:    condemnation  of,  381- 

383. 
Bombardment :     of    Greytown    as 

punishment    (1854),  40-41. 
Bonfils:     (425  n.). 
Borchard,    Edwin    M. :     3  n ;     36 ; 

57;    (160u). 
Bosnia :    127. 
Boxer     uprising:      expiation     for, 

30 /. 

Brazil:     27,  199. 
Brussels,  Act  of:    204-205. 
Bulgaria:     83,  128-136. 
Burke,    Edmund:     prevention    of 

mischief,    280  n. 
Burlemaqui:     (374  n). 
Bynkershoek:    217. 

Callahan,  J.  M.:    433. 

Calvo:     (220);    395  n. 

Campbell,  Sir  George:    208. 

Canning,  George:    379. 

Carnazza  Amari:    (320  n). 

Caroline :     5. 

Carr,  Wilbur  J.:    253;    342  n. 

Casablanca:    bombardment  of,  39. 

Castlereagh,  Viscount :  89  n ; 
332?i;  333/;  357;  395  n;  412. 

Catherine  II:    115  n. 

Cavagliere:     (321  n). 

Charlestown :    283  n. 

China:    30;    39;    249 /;    256  n. 

Chosu,  Prince  of:  Collective  action 
against,  5. 

Chretien,  Alfred:    (308  ?i). 

Citizens:  Responsibility  of  for 
conduct  of  government:  456. 

Civil  war  (see  also  Protracted 
Civil  War) :  delicacy  of  inter- 
ference in,  108  n ;  right  to  in- 
tervene first  recognized  by 
Glafey,  282  n. 

Clark,  J.  R,,  Jr.,  42  n. 

Clarke,  Sir  Edward:    223 /;  229  n. 

Cobbett,  Pitt:    (283  n)  ;     (286). 

Cobden,  Richard :    369  n. 

Cockburn,  Lord  Chief  Justice:  212. 

Colby,  Secretary:    321;    380-382. 


INDEX 


545 


Collective  action  (see  also  Euro- 
pean Concert)  :  punishment  of 
Prince  of  Chosu  (1864),  5; 
against  China  (1920),  39;  in 
Lebanon  to  prevent  persecution 
of  Maronites  (1860),  63-66;  lim- 
itation of  humanitarian  interven- 
tion to,  63 -64  ft;  in  Syria,  65;  in 
favor  Roumanian  Jews  (1867), 
67;  to  prevent  persecution  of 
Eoumanian  Jews  (1867),  68-69; 
U.  S.  asks  Gt.  B.  to  take,  against 
Eussia,  73 ;  of  Gt.  B.,  France, 
and  Austria  in  favor  of  Poland, 
89  / ;  effect  of,  to  increase  sig- 
nificance of  menacing  language, 
94;  concurrent  notes  to  Russia 
(1863),  94;  Gt.  B.  fears  joint 
action  with  France,  94;  identic 
notes,  importance  of,  94;  Fish 
tries  to  effect,  relative  to  Cuba, 
121  ft;  in  Greece  (1827),  126; 
Bulgaria  (1876)  127  /;  France 
and  Gt.  B.  against  Naples,  137; 
in  Morocco  (1909),  146-148; 
Gt.  B.  and  U.  S.  cooperate  in 
regard  to  Putumayo,  186 ;  tradi- 
tional policy  of  U.  S.  regarding 
joint  action,  174;  proposal  to 
restrict  international  police  regu- 
lation to,  285;  of  European 
concert,  306-311;  greater  au- 
thority of  states  in,  310  n. 

Colombia:  action  of  U.  S.  in  re- 
gard to  Panama,  287-297. 

Comity:  opinion  that  obligations 
of  international  cooperation  are 
based  upon,  47-48  n. 

Commerce  (see  also  Commercial 
Relations)  :  foreign,  humani- 
tarian intervention  through  regu- 
lation of,  257-277. 

Commercial  Relations :  right  to 
compel  Japan  to  enter  into, 
287  n. 

Compensation :    35. 

Compromise  (see  also  Adjustment, 
Conciliation,  Relativity) :  ob- 
ligation to  agree  to  reasonable, 
of  rights  and  interests,  V  (Pre- 
face) ;  reasonable,  all  just 
grounds  of  intervention  subor- 
dinate to  obligation  of,  VI 
(Preface)  ;  36;  right  to  counter- 
intervene  against  state  not  show- 
ing spirit  of,  451-453 ;  obliga- 
tion to  agree  to  reasonable,  456; 
obligation  to  accept,  before  re- 
35 


course  to  force,  456;  to  be 
adopted  for  cases  without  rule 
of  law,  457;  obligation  to  con- 
form to  reasonable,  457;  rea- 
sonable rule  which  requires 
states  to  agree  to,  457. 

Compuigators:     purpose    of,    12  n. 

Concert  (see  also  European  Con- 
cert) :  306-311. 

Conciliation,  International :  see 
Compromise. 

Concurrent  action :  presentation 
of  notes  to  Russia,  94;  see 
Kongo,  intervention  of  Gt.  B. 
and  U.  S.,  162-179. 

Condorcet:     377-378. 

Conferences:  powers  of  the  nations 
in,  310n;  exercise  executive  au- 
thority, 429. 

Conquest:  Russian  argument  re- 
garding effect  of,  op  treaty, 
109  n;  modification  of  law  per- 
mitting enslavement,  217;  par- 
tition another  name  for,  415 ; 
Morier  justifies  compensation, 
416;  obligation  of  third  states 
to  prevent  excessive  satisfaction, 
420-421;  defined,  431-438;  an- 
nexation not  always  conquest, 
432  n;  wars  for  conquest  un- 
lawful, 432  n ;  authorities  recog- 
nizing illegality  of,  433  n ;  forms 
of,  435  n ;  Russian  system  of, 
435-436;  indemnity  cover  for, 
436-437;  illegality  of  not  to  be 
confused  with  legal  consequences 
of,  437;  uti  possidetis,  437  n; 
438. 

Costa  Rica:     152  n;    300. 

Constitutionalism:  interference  to 
maintain,  150-154;  interferences 
of  Wilson  administration  in 
favor  of,  84. 

Constructive  attack:  373-378; 
abusive  asylum,  373  n,  right  to 
meet,  by  self-help,  374. 

Constructive  intervention:  use  of 
territory  as  base  justified  as, 
104  n. 

Consul:  apology  of  Russian  offi- 
cial for  insult  to  German,  26 ; 
refuse  vise  of  passports,  72  «. 

Contagion:  doctrine  of,  385-392; 
illegality  of  interference  based 
upon,  390  passim. 

Contempt  of  sovereignty:  sug- 
gested as  designation,  323. 


54G 


INDEX 


Contributory  negligence:  effect 
upon  right  of  representations, 
104. 

Cooperation:  expenses  for  inter- 
vention in  Cuba,  5;  to  prevent 
Fenian  expedition,  7-8  n;  of 
powers  to  suppress  slave  trade 
(1841),  8;  of  United  States 
and  Mexico  to  prevent  frontier 
raids  (1893),  8n;  Palmerston 
overthrown  for  attempt  to  pre- 
vent conspiracies,  25  n. 

Copenhagen,  bombardment  of:  dis- 
cussion of,  407-414;  compared 
with  violation  of  Belgium,  413. 

Counter- Armament  (see  also  In- 
surance, Prevention)  :  futility 
of  policy  of,  when  pushed  to 
extreme,  366-369  n. 

Counter-Tntervention :  45-51 ;  ob- 
ligation to  undertake,  47-49 ; 
authorities  who  deny  obligation, 
47-48;  effect  of  public  opinion, 
49. 

Counsel:  given  to  Servian  gov- 
ernment, 144. 

Crampton,   Sir  John :     199,   322  n. 

Creole   case:     227/. 

Creasy,  Sir  Edward  S.:  22-23; 
45?i;  (55  n);  124;  206  n;  355- 
356;  359;  361;  (372  n) ; 
395  n;  418-419,  n;  441  n. 

Crimes:  extraordinary,  interven- 
tion justified  in  the  case  of, 
139-146;  in  Servia,  139-146. 

Cromer,   Lord :     3  n. 

Cuba:  expenses  for  intervention 
in,  5;  justice  of  intervention  in 
(1898),  57-58;  rests  on  doc- 
trine of  "international  nui- 
sance, ' '  says  Moore,  62  n ;  refu- 
tation of  Moore's  view,  62-63  n; 
intervention  of  U.  S.  in,  120; 
humanitarian  intervention  (1898) 
in,  120-122;  protection  of 
American  interests,  122  n ;  U.  S. 
supervisory  action  in,  approved 
by  Roosevelt,  296 ;  Lord  Eustace 
Percy  considers  Cuba  depend- 
ency of  U.  S.,  303-304  7i ;  for- 
bearance of  the  U.  S.  in  the  case 
of,  346. 

Curtis,  Poy  Emerson :    7  n. 

Damages  (see  also  Exemplary 
damages):  exemplary,  31-34; 
obligation  to  pay,  36;  indirect, 
36. 


Dana,   R.    H.:     269. 

Danish  Sound  Dues:    288  n. 

Decision  of  sovereign:  subject  to 
control  of  other  states,  403-404. 

Delagoa  Railway  Arbitration:    35. 

Delays:  obligation  to  observe  all 
reasonable,  before  recourse  to 
force,  456. 

Delbruck,   Prof.:    301  n. 

DelcassS:     17;     140. 

Denial  of  Justice  (see  also  In- 
justice) :  intervention  on  the 
ground  of,  139. 

Dennis,  William  C.:    290  n. 

Dickinson,  E.  D.  (64  n)  ;  (304  n); 
307  n;  315  n;  429  n.. 

Dictation:  weaker  states  submit 
to  reasonable,  451 ;  small 
states  yield  to,  451. 

Diplomacy:  Roosevelt's  action  in 
behalf  of  Jews  on  Russia,  76- 
77 ;  method  used  to  prevent  per- 
secution of  Protestants  in  Tus- 
cany, 84-85;  personal  influence 
of  Lord  Normanby,  85 ;  Napier 
communicates  note  informally 
before  presentation,  99  n. 

Diplomatic  corps:  at  Lima,  action 
regarding  importation  of  Poly- 
nesians, 201-202. 

Diplomatic  intervention:  formerly 
used  in  place  of  interposition, 
2n. 

Disavowal :     34-35. 

Discretion:  (see  also  Sovereignty) : 
in  enforcing  international  law, 
must  be  left  to  governments,  49 ; 
effect  of  diplomatic  considera- 
tions cause  demand  for  equal 
treatment  of  Jews,  79-80  n  ;  of 
state  in  fulfilling  obligations, 
403 ;  opportunity  for  states  in 
fulfilling  obligations  and  insist- 
ing upon  rights,  447-448 ;  in 
fulfilling  obligations,  affords 
necessary  elasticity  (447)  ;  rea- 
sonable, of  sovereign  fixed  by 
opinion  of  all  the  states,  456. 

Discrimination :  effect  of,  upon 
small  states,  318  n. 

Disinterestedness :  Harding  re- 
marks on,  of  U.  S.  in  Cuba 
(1898),  121 n;  of  U.  S.  in 
Kongo,  167 ;  of  U.  S.  action  in 
Kongo,  177;  of  U.  S.  and  man- 
date over  Armenia,  312. 

Disraeli:  24  n;  128-136;  130  n; 
399  n. 


INDEX 


547 


Disturbances,  prolonged:  as  justi- 
fication for  intervention  (Poland 
1863),  112-113  n;  Cuba,  121. 

Draga,  Queen:  assassination  of, 
139 /. 

Dresden:  destruction  of,  in  the 
nature  of  self-help,  6. 

Druses:  persecution  of  Maronites, 
•  63-66. 

Duel:    31-32. 

Dunning,  W.   A. :    55. 

Dupuis,  Charles :    416,  423  n. 

Easement:  the  doctrine  of  inter- 
national, defended  by  Koot,  295. 

Egypt :     296 ;     368  n. 

Equality:  U.  S.  considers  refusal 
to  vise  passports  of  Jews  vio- 
lation of,  72  n ;  Lord  Granville 
insists  that  treaty  of  1859  gives 
equality  of  treatment  to  all 
British  subjects,  79  n;  of  treat- 
ment, U.  S.  demands,  for  all 
Americans,  72;  France  secures 
for  French  Jews  in  Switzerland, 
81  n. 

Equality  of  states:  criticism  of 
theory  of,  314-315/1;  as  regards 
international  law,  451. 

Esmein :    86  n. 

European  Concert  (see  also  Col- 
lective Action)  :  306-310. 

Exclusion  of  warships:  nature  of 
right,  217. 

Executive  authority:  of  interna- 
tional society,  429. 

Exemplary  damages:  31-34;  com- 
pared with  wergild,  31. 

Expenses:  reimbursement  of,  for 
punishment  of  Prince  of  Chosu, 
5;  reimbursement  of,  for  inter- 
vention in  Cuba,  5. 

Expiation:  21-35,  right  to  exact, 
21-23;  apology,  24-27;  salute 
of  flag,  27-28 ;  missions  and 
monuments,  28-31;  exemplary 
damages,  31-34;  disavowal, 
34-35. 

Expulsion :  U.  S.  objects  to  en- 
forced immigration  of  Jews,  69, 
74-75. 

Extradition:  refusal  of,  in  case 
of  slave  (Anderson  case),  221- 
226;  in  Creole  case,  227-234; 
refusal  to  deliver  Anfu  leaders, 
256  n ;  of  seamen,  268  passim. 

Extraordinary  crimes:  interven- 
tion justified  in  the  case  of,  139- 


146;  assassination  of  King 
Alexander  and  Queen  Draga, 
139-146. 

Extraterritoriality  (see  also  Asy- 
lum, Warships)  :  Circassian 
slave  received  in  British  em- 
bassy, 234-238. 

Falkland  Islands:    instance  of,  4. 

Fashoda:     incident,  17. 

Favored  treatment  for  aliens: 
humanitarian  intervention  to  se- 
cure, 154-162. 

Fenelon:     421-422  n;    427  n. 

Fenian  expedition  against  Canada 
(1884)  :  cooperation  to  prevent, 
7-8  n. 

Fessenden:     279. 

Field:     (220  n). 

Filibustering  expeditions :  right  to 
use  self-help  to  prevent,  3  74  71. 

Floeckher  de:    320?;. 

Florida:     incident  of,  27-28. 

Forbearance:  SewarJ's  remarks, 
115  n;  obligation  of  foreign 
states  during  civil  war,  346-347 ; 
obligation  ceases  with  protracted 
struggle,  350 /. 

Force:  purpose  to  set  forth  oc- 
casions where  recourse  to,  to 
influence  state  conduct,  is  justi- 
fied, VI  (Preface)  ;  right  to 
use,  to  overcome  resistance  to 
law,  50-51;  obligation  to  ob- 
serve delays  before  recourse  to, 
453  n ;  obligation  to  demon- 
strate right  before  having  re- 
course to,  456;  rule  governing 
employment  of,  in  international 
relations,  455 ;  publication  of 
reasons  before  recourse  to,  af- 
fords sanction,  457. 

Foreign  commerce:  humanitarian 
intervention  through  regulation 
of,  257-277. 

Foster,   John   W.:     251-252  n. 

Franco-German  war  (1870)  :  pres- 
tige from,  18-19. 

Frankfort :     79. 

Fugitive  slaves:  refusal  to  deliver, 
205-241. 

Funk-Brentano  and  Sorel :  41 ; 
(58  n);  331-332;  349n;350n; 
375-376  n. 

Furuseth,   Andrew:     261 /. 

Galiani,  Ferdinando:     400-401. 
Gareis:     (58  n)  ;     (64  n). 


548 


INDEX 


Garner,  J.  W.:    (402  n). 

Geffcken:    330  n;    (338  n). 

Gentz :     284  n. 

George,  Lloyd :    12  n. 

Germany:      18;      27;     204;      413. 

Gladstone:  champions  cause  of 
Bulgarians,  132  passim. 

Glafey,  Ad.  F. :  first  to  recognize 
right  to  intervene  in  protracted 
civil  strive,  282  n. 

Good  offices:  used  to  cover  pro- 
test, 82. 

Gortchakoff :    97  /. 

Government,  form  of:  restriction 
upon  in  common  interest,  428- 
429. 

Granville,  Lord:     79  n;     130. 

Greece:  83;  intervention  in  1827, 
126-127;  status  of,  307  n. 

Green,  J.  B. :  on  humanitarian 
intervention  in  favor  of  self- 
determination,  134. 

Grey,  Lord  (1821):    379. 

Grey,  Sir  Edward  (Viscount) : 
limited  support  of  interference 
against  Huerta,  152  n ;  com- 
ment of,  on  U.  S.  attitude  to- 
ward League  of  Nations,  326- 
329. 

Greytown :     40. 

Groce  and  Cannon:    incident,  43. 
'  Gronovius :     288  n. 

Grotius:  (55  n)  ;  56-57;  281; 
287  n;  288  n;  355;  369-370; 
395  n  400  n;  407;  408  n. 

Growth  (see  also  Prevention) : 
innocent;  right  of,  367-373; 
right  to  regulate,  to  prevent  dis- 
turbance of  balance  of  power, 
427. 

Guarantee :  of  Alsace-Lorraine, 
by  neutral  powers,  suggested  by 
Mill,  37  n;  treaty  of  1846,  290; 
treaties  of,  430,  439-440 n;  Wil- 
son proposes  treaty  of,  for 
American  states,  443. 

Guatemala:    28  n;    33;    148 /. 

Giinther:  limitation  upon  abuse 
of  sovereignty,  281-282  n; 
(284n);  442  n. 

Guizot:    311  n;    330  n;   (394  n). 

Hale,  Horatio:    11  n. 

Hall,  W.  E.:  2n;  45;  47  n;  48 
51  n;  (56  n);  60-61  n;  196  n 
240;  277  n;  (280  n) ;  285 
286;  310  n;  331  n;  353  n 
358  n;  (374  n);  391-392 


394  n.     408  n;    409-410;    425  n; 

431  n;       (438  n)  ;      441  n;     444- 
445  n. 

Halleck,  H.  W. :  (58  n) ;  (220  n)  ; 
319  n  ;  (352  n);  403  n;  422  n; 

432  n;    441  n;   (445  n). 
Hammond :    240. 

Harcourt  (Historicus)  :  60  n; 
429-430  n. 

Harding,  President:  121;  302  n; 
383-384;  449. 

Harrington,  Lord:     66. 

Hauterive :     397  n. 

Hay,  Secretary:    69. 

Hayti:     302  n;     305. 

Hciberg:     (55  n)  ;    386  n. 

Heineccius:      374  n. 

Heffter:  (55  »)  ;  (220  n)  ; 
(353  n);  (444  n). 

Heller,  Karl:    282  n. 

Hershey,  A.  S.:  77  n;  301  n; 
(312  ?i )  ;  434. 

Herzegovina:     127;     13671,;     296. 

Hesse    Cassel :     440  n. 

High  Seas:  jurisdiction  over,  6-7, 
7n. 

Historicus:    see  Harcourt. 

Hodges,  H.  G.    (56  n). 

Hogan :    401. 

Holland:    see  Netherlands. 

Holland,  T.  E.:  19  n;  203;.  309  n; 
356  7i ;  410  n. 

Holy  Alliance:  Gt.  B.  opposes  in- 
terference policy  of,  332-337; 
attempts  to  enforce  doctrine  of 
contagion,  387. 

Hooker:  limitation  upon  sover- 
eignty, 281  n. 

Hostile  expeditions:  Fenian  in- 
vasion of  Canada  Caroline  af- 
fair, 5;  cooperation  to  prevent, 
7-8  n ;  Palmerston  's  efforts  to 
prevent  conspiracies  (1857),  24- 
25  n. 

Hostile  operations,  base  of:  af- 
forded Polish  insurgents,  104; 
obligation  to  prevent,  104  n. 

Hostile  propaganda:  378-384;  of 
Irish  sympathizers,  383 ;  limits 
upon  religious  propaganda 
abroad,  384-38571. 

Huber:     (357  n). 

Huerta :    151 ;    300  n. 

Humanitarian  asylum:    205-257. 

Humanitarian  intervention:  51- 
277;  definition,  51,  53;  not 
justified  for  occasional  abuses, 
52;  legality  of,  55-58;  action 


INDE.X 


549 


of  U.  S.  in  Cuba  legal,  57-58; 
authorities  who  deny  legality, 
58;  Eougier  considers  rests 
upon  the  solidarity  of  mankind, 
53  n ;  approved  by  author  of 
' '  Vindicae  Contra  Tyrannos, ' ' 
55;  Grotius,  56;  Borchard,  57; 
Woolsey,  T.  S.,  57;  Werden- 
hagen  denies  legality,  58  n ; 
Vattel  's  opinion,  59  n ;  Ber- 
nard's  opinion,  59-60  n;  Har- 
eourt's,  60  n;  Hall's,  60  n; 
Lawrence's,  61  n;  authorities 
who  condone,  59-62 ;  doctrine  of 
' '  international  nuisance ' '  re- 
futed, 62 ;  limitation  to  col- 
lective action,  63-64;  in  the 
case  of  semi-civilized  peoples, 
64-65;  to  prevent  oppression, 
86-125;  to  prevent  uncivilized 
warfare,  125-139 ;  to  prevent  in- 
justice, 139-195;  not  justified 
on  ground  of  occasional  abuse, 
139 ;  to  punish  extraordinary 
crimes,  139-146;  to  prevent  per- 
sistently abusive  treatment,  146- 
150;  to  ensure  constitutional 
government,  150-154;  to  secure 
favored  treatment  for  aliens, 
154-162 ;  to  prevent  abusive 
treatment  of  aborigines,  162- 
195 ;  to  suppress  the  slave  trade, 
195-205;  by  means  of  humani- 
tarian asylum,  205-257 ;  through 
regulation  of  foreign  commerce, 
257-277;  asylum  to  slaves  con- 
stitutes negative  form  of,  207 ; 
passive,  by  excluding  ships  and 
imports,  270-277. 

Humanity:  laws  contrary  to, 
ought  not  to  be  observed  on  for- 
eign warships,  214. 

Identic  notes:  superior  to  con- 
current, 94. 

Idman,  K.  G.:     (439  n). 

Impeachment  of  sovereignty:  of 
Russia  over  Poland,  in  Russell's 
note,  99  n ;  intervention  in 
Poland  justified  on  ground  of 
prolonged  disturbances,  112- 
113  n;  138;  of  Peru  in  Putu- 
mayo,  192 ;  premature  recogni- 
tion constitutes  unwarranted, 
349;  in  the  case  of  anarchy 
and  protracted  struggle,  350- 
351. 


Imperfect  Rights:  and  duties, 
447-449. 

Imports:  Stapleton  favors  exclu- 
sion of  slave-grown  sugar,  276. 

Incitement  to  revolt:  when  justifi- 
able as  auxiliary  of  interven- 
tion, 353 ;  Amos  gives  defini- 
tion, 354-355;  hostile  propa- 
ganda, 378-384;  used  against 
weak  states  to  influence  action, 
450. 

Indemnity:  35-36;  payment  of, 
to  Colombia  not  justified,  292. 

Independence  {see  also  Absolute 
independence,  Perfect  rights)  ; 
no  state  justified  in  insisting 
upon  absolute,  V  (Preface). 

Indirect  damages:    35-36. 

Individual:  protection  of  rights 
of,  139;  responsibility  for  con- 
duct of  government,  457. 

Injustice :  as  a  ground  for  humani- 
1  tarian  intervention,  139-195. 

Insurance:  against  attack,  futility 
of,  366-369  n. 

Intercession:  whether  action  to 
prevent  persecution  of  Russian 
Jews  was,  or  intervention,  71  n; 
Hershey  criticizes  Merignhac  's 
views  relative  to  action  in 
favor  of  Russian  Jews,  77;  of 
Lord  Palmerston  in  favor  of 
Poles  (1830),  91;  representa- 
tions of  small  states  for  Poland 
not  intervention,  95-96. 

Interests:  protection  of  vital,  a 
ground  for  invention  (Castle- 
reagh)  :  336;  facilities  of 
states  to  protect,  450;  import- 
ant, of  other  states,  obligation 
to  yield  technical  rights  to  con- 
serve, 451. 

Interference  (see  also  Non-inter- 
ference) :  of  Wilson  adminis- 
tration in  favor  of  constitution- 
alism, 84;  in  favor  of  political 
agitators  in  Naples  (1857),  88; 
definition  of,  318;  opinions  of 
authorities,  318  /,  often  wrongly 
confined  to  internal  affairs,  319- 
321;  distinguished  from  "vio- 
lations of  sovereignty, ' '  322  ; 
treaty  cannot  give  right  of, 
439-443. 

International  law  (see  also  Vindi- 
cation of  International  Law)  : 
discovered  in  general  practice  of 
states,  V  (Preface) ;  refusal  to 


550 


INDEX 


compromise  on  basis  of  relative 
importance  of  rights  and  inter- 
ests, violation  of,  VI  (Preface) ; 
distinction  between,  and  inter- 
national morality,  52 ;  not  sta- 
tionary, but  admits  progressive 
improvement,  217;  part  of  law 
of  England,  233;  Angell  criti- 
cizes Hall 's  definition  of,  286 ; 
based  upon  territorial  sover- 
eignty, 297;  importance  of, 
345  n,  347  n ;  primary  purpose 
of,  372-373;  effect  of  formula- 
tion of  rules,  398  n ;  rules  of 
must  not  be  too  rigid,  447 ; 
system  of,  must  be  elastic,  447  / ; 
purpose  of,  451 ;  includes  ob- 
ligation to  agree  to  reasonable 
compromise,  452-453  ;  system  of, 
built  upon  what  is  reasonable 
in  opinion  of  all  the  states,  456 ; 
political  questions  not  covered 
by,  457;  conduct  of  state  wheti 
no  guiding  rule  of,  457 ;  no  rule 
possible  when  opinion  divided, 
457;  nature  of  control  over 
political  action,  457. 

International    Police:     45-317. 

International  Police  Regulation : 
277-297. 

International  rivers:  right  to  use, 
nature  of,  287  n. 

International  security :  superior  to 
rights  of  separate  states,  455. 

Interposition:  discussed,  1-44;  de- 
fined, 2 ;  use  of,  for  counter- 
interrention,  45. 

Intervention  (see  also  Humani- 
tarian Intervention,  Interposi- 
tion, International  Police)  : 
defined,  VI  (Preface);  316; 
law  of,  lies  between  absolute 
independence  and  unregulated  in- 
terference, V  (Preface)  ;  means 
or  machinery  not  discussed,  V 
(Preface) ;  justice  of  grounds 
of,  rests  upon  public  opinion, 
V  (Preface; ;  to  secure  redress 
for  national  rights  called  "In- 
terposition," 2;  all  just  ground 
of,  subordinated  to  rule  of  rea- 
sonable compromise,  VI  (Pref- 
ace) ;  justified  upon  refusal  to 
compromise,  VI  (Preface)  ;  re- 
imbursement for  expenses  of,  in 
Cuba,  5;  constructive,  by  use  of 
territory  as  base  for  Polish  in- 


surgents, 104  n;  negative  or 
passive  humanitarian,  105  n; 
distinguished  from  interference, 
316;  right  of,  to  enforce  obli- 
gation, of  reasonable  compro- 
mise, 454;  application  of  the 
law  of,  guided  by  opinion  of  all 
the  states,  "555. 

Intolerance  (see  also  Persecution) : 
treatment  of  Christians  in  Tur- 
key (1867),  133  n. 

Invitation :  effect  of,  to  justify 
assistance  in  case  of  insurrection, 
331-332;  from  insurgents  can- 
not justify  interference,  352 ; 
practical  value  of,  352-^53. 

Ireland:  American  interference  in 
(1848),  87-88;  application  to, 
of  principles  laid  down  in  regard 
to  Poland,  120 ;  discussion  of 
rights  of,  122-126;  propaganda 
of  Irish  sympathizers  in  U.  S., 
383-384. 

Iroquois:  League  of,  regulates 
private  vengeance,  11. 

Italy:    88;    95;    96  n;    134. 

Japan:  victory  over  Russia,  pres- 
tige from,  19. 

Jews:  of  Prague,  persecution  of, 
by  Maria  Theresa,  66-67;  per- 
secution in  Roumania,  67-70; 
persecution  in  Russia,  71-79; 
persecution  of  by  Prussia  in 
Frankfort,  79;  in  Switzerland, 
80-81  n. 

Joint  action:  representations  in 
Kongo,  173 ;  U.  S.  tries  to  se- 
cure in  Cuba,  198-199. 

Justification:  see  Statement  of 
reasons. 

Jouffroy:    401  n. 

Kamptz :     284  n ;    442  n. 
Kebedgy,   M.    S.:      (56  n) ;     65 n; 

282  n;     311  n;     319  n;    (321  n). 
Kent:        154;         (220  n)  ;       357; 

(394  n). 

Keynes,  J.  M. :    12  n. 
Kishenef    massacres    (1903):     76- 

78. 
Kliiber;    (372  n) ;  (386  n);  393  n; 

396;     (408  n.);     411  n;    (442  n). 
Knox,   Secretary:     43;     78;     150; 

ISO/;    247 /. 
Kongo:     intervention    of    Gt.    B. 

and  U.  S.  to  prevent  abuse  in, 

162-179. 


INDEX 


551 


Kongo  Eeform  Association:  ap- 
peal for  intervention,  164  /. 

Korea :  Senate  refuses  to  declare 
sympathy  for,  124  n. 

Kozmian,  b.  von:     (97  n). 

Krug,  W.  T.:    387;    424  n;    442  n. 

Kruger,  President:    365  n. 

Kuhn,   Arthur   K.:     79-81  n. 

Labor:  enforced  (see  also  Aborig- 
ines) :  arrest  of  seamen,  264 
passim. 

Laboree:  suggested  expiation  for 
murder  of:  30-31. 

Lampredi:     222;     (408  n). 

Law:  purpose  of,  to  preserve 
peace,  433  n. 

Law  of  War:  intervention  to 
prevent  violation  of,  125-126; 
137  n;  282  n. 

Lawrence,  T.  J.:  (47  n);  61-62  n; 
297  «;  307  7i ;  308  n;  (312  n)  ; 
313-314  n;  359  n;  394  n; 
(397  n);  401  n;  (403  n)  ; 
4127i;  423n;  442  n. 

Lebanon :  intervention  of  powers 
to  protect  Maronites:  63-66. 

Legations:  and  Consulates,  asy- 
lum in,  243-257. 

Legitimacy:  doctrine  of,  and 
Holy  Alliance,  332-338. 

Lewis,  Sir  George  Cornewall:  366- 
369  n;  376  n;  439  n. 

Limitation  of  Armaments:  na- 
ture of,  when  imposed,  287,  428. 

Lingelback,  W.  E.:  (56  71);  153; 
42471. 

Liberia :     300  n. 

Liszt,  Franz  von:    394  n. 

Lorimer,  James:    (47  n). 

Louter,  J.  de:    439  n;    (442  n). 

Lusitania :  publication  of  warn- 
ing "contempt  of  sovereignty," 
323-324. 

Lyons,  Lord:  17;  133  n;  240; 
284  n. 

Macaulay,  Lord:   418-421  n. 

Aiachiavelli :    393  n. 

Mclntosh,  Sir  J  ames :   20  n ;  135  n ; 

346  n;     35271. 
McDermott,  P.  L.:    204  n. 
McLeod:     instance,  5. 
Magee:    incident,  28. 
Magnanimity :     President   Barrows 

discusses  effect  of,  16;    when  out 

of  place,  20. 


Mahan,  Capt.  A.  H.:  54-55;  134  n; 
303-304;  41071. 

Maine,  Sir  Henry  S.:  153;  213; 
345  n ;  360-361. 

Mamiani:     351  n;    395-396  n. 

Mandala:     doctrine  of:     304  n. 

Mandates:  311-316;  U.  S.  in- 
vited to  accept,  for  Armenia,  82. 

Mandatory:  (see  also  mandates)  ; 
Eussia's  action  in  Bulgaria 
(1877)  not  for  interests  of 
other  powers,  132 ;  Mill  refers 
to  action  of  one  nation  acting 
with  acquiescence  of  others, 
138 ;  U.  S.  in  Panama,  acting 
as,  for  all  states,  289;  Hall's 
reference  to  action  as,  31071. 

Manifesto  (see  also  Statement  of 
reasons)  :  455. 

Manning,   Oke:     378-379. 

Marcy,  Secretary  of  State:  denies 
aliens  enjoy  favored  treatment, 
155. 

Maronites;  persecution  of,  by 
Druses,  63-66. 

Martens,  F.  de:  (164  n)  ;  320  n; 
(444n). 

Martens,  G.  F.  de :  314  n ;  (353  n)  ; 
(360);  (3727!.);  393  n;  425  n; 
442  n;  44571. 

Means,  T.  L.:    280  n. 

Memorial  builaing:  as  expiation, 
30-31. 

Menace:    see  Threats. 

Merchant  Shipping  Act :    258  /. 

Metternich:    332;    337;    387. 

Mexico:  interference  of  President 
Wilson  to  prevent  recognition  of 
Huerta,  151-152  n ;  intervention 
policy  of  U.  S.  in,  301  n;  as- 
sistance afforded  U.  S.  1912  by 
embargo  on  export  of  arms, 
342  7i ;  permission  to  cross 
American  territory,  343-344. 

Military  necessity:     404-405. 

Military  preparations:  effect  and 
prevention  of,  362-366. 

Mill,  John  Stuart:  24-26;  repara- 
tion due  Germany  for  French 
aggression  (1870)  37  n;  Alsace- 
Lorraine  settlement,  37  n  ;  8871; 
justifies  intervention  to  stop 
prolonged  civil  war,  138;  239  n; 
304  n;  346  n;  391;  433  n. 

Millard's  Review:     25671. 

Milovanovitch:      (442n). 

Missions:    expiatory,  28-30. 


INDEX 


Mobilization:  significance  of  mili- 
tary preparations  and  right  to 
prevent,  362-367. 

Monroe  Doctrine:    J.  B.  Moore  on, 


Monuments:     expiatory,  30-31. 

Moore,  J.  B.:  3n;  36;  40-41; 
43;  (51  n);  "international 
nuisance,"  62  n;  133  n;  224  f; 
226n;  242;  259;  268n;283/; 
(297  n);  299  n;  300  n;  304; 
(342  n);  343  n;  349;  (378  n)  ; 
443  n. 

Morality  :  international,  distinc- 
tion between  and  international 
law,  52  n  ;  Hall  considers,  as 
justification  of  police  action, 
285;  Hall  criticized  by  Angell, 
286;  violation  of  international 
law  justifiable,  207  ;  obligation 
to  compromise  differences,  452. 

Morier,  Sir  Robert:  78;  319- 
320  n;  (347  n)  ;  416;  432  n. 

Morley,  John:    127;    133  n. 

Moser,  J.  J.:    66. 

Napier,  Lord.    14  n;    97  n. 

Naples:     88;      137;     333. 

Napoleon  III:  65;  86  n;  153; 
238. 

j.  ational  control:    nature  of,  6-7. 

Nationalities  (see  also  Oppression, 
Self-Determination)  :  Napoleon 
III  action  in  Italy,  153  ;  opin- 
ion in  favor  of  interference  on 
behalf  of,  351  ;  criticism  of, 
351;  doctrine  of,  often  pretext 
for  conquest,  435  n. 

Necessity  (see  also  Self  -Preserva- 
tion) :  Castlereagh  considers 
justifies  interference,  336;  doc- 
trine of,  393  /  ;  why  contrary 
to  international  law,  396;  true 
doctrine  of,  defined,  399  ;  mili- 
tary necessity,  404-405  ;  mili- 
tary necessity  and  neutral  rights, 
405-414  ;  absolute,  perfect 
rights  covers  doctrine  of,  453. 

Negative  intervention  :  105n;  asy- 
lum to  fugitive  slaves  consti- 
tutes, 207;  refusal  to  extradite 
slaves,  221  /. 

Netherlands:    66;    282  n.. 

Neutrality:  military  necessity  and 
neutral  rights,  405-414. 

Neutralization:     428. 

Newton,  Lord:    240. 


Nicaragua :    33  n ;    43 ;    302  n. 

Nicholas  II :    364-365  n. 

Non-interference  (see  also  Inde- 
pendence) :  discussion  (of  the 
principle  of,  and  various  excep- 
tions in  which  intervention  is 
justified,  317-446;  does  not 
justify  abusive  use  of  independ- 
ence, 321;  Gt.  B.  opposes 
policy  of  Holy  Alliance,  332- 
333. 

Non-intervention :  Westlake  re- 
futes doctrine  of,  53-54;  British 
policy,  117  7i. 

Normanby,  Lord:     (85). 

Notice:    see  Statement  of  reasons. 

Nuisance:  doctrine  of  interna- 
tional refuted,  62;  intervention 
in  Cuba  (1898)  erroneously 
justified  as  removal  of  121  n; 
when  a  state  becomes,  justifies 
police  action,  415  n. 

Obata:    256  n. 

Olmutz :    320. 

Oppenheim:  26;  (47  n)  ;  50-51  n; 
61  n;  394 n;  (397  n) ;  425  n; 
428  n. 

Oppression  (see  also  Support  of 
Revolution):  86-125;  formerly 
confused  with  religious  persecu- 
tion, 86 ;  humanitarian  interven- 
tion to  prevent,  86-125;  of 
Poles,  statement  of  basis  of  the 
intervention  (1863),  112;  state- 
ment of  acts  which  constitute, 
(Poland,  1863),  112,  112-120; 
Cuba,  120-121;  humanitarian 
intervention  to  prevent  justified 
by  Green,  134;  limits  of  right 
to  intervene  to  prevent,  351-352. 

Ortolan:     (220  n). 

Ostracism:  William  II  refuses  to 
receive  King  Peter,  144. 

Otto,  King:  given  refuge  on  Brit- 
ish warship,  242. 

Ott's  Kliiber:    386  n;    396  n. 

Pacific  Blockade:  Zanzibar,  203- 
204  n. 

Pacifico  Case:     157;    401. 

Palmer,  Sir  Roundell:    154-155. 

Palmerston,  Lord:  instructions  re- 
garding intercession  for  Poland, 
100  n;  interferes  to  favor  con- 
stitutional government,  153 ; 
action  to  suppress  slave  trade, 


INDEX 


553 


199-200;  interference  to  secure 
constitutional  government  in 
Spain,  199;  constrains  Brazil 
to  abolish  slave  trade,  199-200; 
action  to  prevent  interference 
in  Sonderbund,  347  n. 

Panama:  nature  of  Eoosevelt's 
action  in  regard  to,  287-297. 

Parma,  Duke  of:    242. 

Partition:  policy  of,  to  maintain 
balance  of  power,  415  / ;  equiva- 
lent to  conquest,  415;  Pal- 
merston  criticizes  French  policy 
of,  417-418;  partition  treaties 
of  1698  and  1700  defended  by 
Macaulay,  418-421  n. 

Passive  Intervention  (see  also 
Negative  Intervention) :  use  of 
territory  by  Poles  may  be  re- 
garded as  instance  of,  on  ground 
of  humanity,  105  n. 

Passports  of  Jews:  refusal  of 
Russian  consuls  to  vise,  72  n. 

Patrol,  International  Police:  278  n. 

Payn,  F.  W.:    53  n;   301  n;   309. 

Peace:  preservation  of,  object  of 
criminal  procedure,  12;  main- 
tenance of,  as  a  ground  of  inter- 
vention (Poland  1863;,  105; 
settlement,  instances  and  nature 
of  intervention  to  effect,  286; 
preservation  of:  obligation  to 
compromise  rights  and  interests 
for,  453 ;  maintenance  of  inter- 
national, rests  upon  appeal  to 
international  reason,  457. 

Peel,  Sir  Robert:    366  n;    369  n. 

Percy,  Lord  Eustace:  discussion 
of  U.  8.  supervision  over  Amer- 
ican states,  302-304  n. 

Perfect  rights:  favored  treatment 
of  aliens  inconsistent  with,  155; 
covers  doctrine  of  absolute 
necessity,  454. 

Persecution:  63-86;  of  Maronites 
by  Druses,  63-66;  of  Jews,  66- 
82;  of  Armenians,  80-82,  82- 
85  n ;  of  Reformation,  83  ;  in 
Tuscany,  84-85;  formerly  con- 
fused with  oppression,  86. 

Persia:    30. 

Persigny :     197  n. 

Persistently  abusive  treatment:  as 
a  basis  for  humanitarian  inter- 
vention, 146-149. 

Peru:    178 /;    200 /;    243 /;  254 /. 

Peter,  King:     142  passim. 


Peter  the  Great's  Ambassador:  in- 
cident, 28-30. 

Phelps,  E.  J.  (56  n) ;    302  n. 

Phillimore,  Sir  Robert:  (58  ft); 
(205ft);  213;  280;  (352  ft)  ; 
360;  373-374  n;  (376ft);  376- 
377;  (394ft);  (403ft);  425  ft; 
428ft. 

Phillips,  W.  A.:  332ft;  (337  n)  ; 
387;  388-390;  414ft. 

Philnpson,  Coleman:  431ft; 
434ft;  437ft. 

Fillet:     (56ft);     308  n;    424ft. 

Plimpsoll  Act:    258-261. 

Poland:    oppression  of,  89-120. 

Police,  International  (see  Inter- 
national Police)  :  45-317. 

Police  patrol:    278ft. 

Policy:  definition  of,  449;  nature 
of,  449;  questions  of,  not  cov- 
ered by  international  law,  457; 
of  enlightened  self-interest,  458. 

Polish  insurrection:  Prussia  in- 
terferes to  assist  Russia,  338-341. 

Political  action  (see  also  Discre- 
tion):  discussion  of,  447-454; 
nature  of  control  of  interna- 
tional law  over,  452-453;  457. 

Political  controversies:  limits  of, 
set  by  international  law,  452- 
453;  obligation  of  international 
law  to  conform  to  reasonable 
compromise  in,  457. 

Political  influence:    450-451. 

Political  refugees:  right  to  refuse 
delivery  from  war  vessels,  215; 
must  not  be  allowed  to  abuse 
asylum,  347-348. 

Pope:  refuge  ready  on  British 
warship,  242;  243. 

Port    Arthur:     421ft. 

Portugal:  34;  35;  95;  153; 
200;  status  of,  305  n;  307  n. 

Pradier-Fode>e :    403  n. 

Premature  recognition :  of  Pan- 
ama constituted  intervention, 
289. 

Prestige:  13-21;  loss  of,  13-14; 
nature  of  national,  14-16 ;  re- 
sulting from  victory,  18-19; 
reputation,  19. 

Prevention :  discussion  of  inter- 
vention to  prevent  aggression, 
355-392 ;  concentration  and 
mobilization,  362-366;  insurance 
against  attack  criticized  by  Lord 
Blachford  and  Lewis,  366-369  n; 


554 


INDEX 


innocent  growth,  right  of,  367- 
373;  constructive  attack,  373- 
378;  hostile  propaganda,  378- 
384;  contagion,  doctrine  of, 
385-392. 

Prevention  of  mischief,  280. 

Preventive  war:    see  Prevention. 

Private  warfare:    31-32. 

Procedure:  criminal,  primary  ob- 
ject of,  12. 

Prohibition  of  entry:    273-276. 

Protest:  spoken  of  as  "good  of- 
fices," (1915),  82;  Palmerston 
(1832)  warns  against  empty 
threats,  100-101  n;  important 
effect  of,  for  Poles  (1830), 
110  n. 

Protracted  civil  war:  justification 
for  intervention  Poland  (1863), 
112-113  n;  Cuba,  121-122;  right 
to  impeach  sovereignty  in  case 
of,  350-351. 

Prussia:  interferes  to  assist  Bus- 
sia  suppress  Polish  insurrection, 
038-341. 

Publicity:  obtained  for  Kisheneff 
protest,  76-77;  effort  to  influ- 
ence Peru  by,  192;  report  on 
Mandates  required,  313»;  ob- 
ligation to  state  reason  before 
recourse  to  force,  458. 

Public  opinion:  justice  of  grounds 
of  intervention  rest  upon,  V 
(Preface) ;  sympathy  of,  for 
Poles,  101  /;  approval  of  mag- 
nanimity, 20;  effect  of,  in  sup- 
port of  counter-intervention,  49; 
enforcement  of  international  law 
dependent  upon,  49;  effect  of, 
on  action  to  prevent  slave  traffic, 
198  n ;  of  all  the  states  con- 
stitutes appeal  from  sovereign 
decision,  456;  enlightened,  salu- 
tary effect  of,  458;  influence 
of,  to  secure  respect  for  law,  458. 

Punishment:  Gt.  B.  refuses  to 
punish  officers  for  action  at 
Lagos  (1759),  34;  37-44;  of 
less  civilized  nations,  39-43 ;  re- 
straining influence  of,  43-44; 
purpose  of,  38,  38  n;  of  in- 
dividuals by  way  of  self-help, 
42 ;  personal  responsibility 
recognized  by  Treaty  of  Ver- 
sailles, 43 ;  expulsion  of  Zelaya 
after  execution  of  Groce  and 
Canon  (1909),  43. 


Punitive  expedition:  see  Punish- 
ment. 

Putumayo  atrocities:  humanitarian 
intervention  of  Gt.  B.  and  U.  S., 
179-195. 

Quabbe,    Georg:     439  n;     (442  n). 

Katification:  Gt.  B.,  for  act  of 
McLeod,  5-6. 

Beason,  rule  of:    455-458. 

Seasonable :  compromise,  conflict 
between  rights  and  interests  to 
be  settled  upon  basis  of,  451 ; 
adjustment:  method  of  reach- 
ing learned  by  experience,  451- 
452 ;  international  law  based 
upon  what  is,  456-457. 

Becognition:  of  Zelaya  withdrawn 
(1909),  43;  of  Greece  (1827), 
126  n ;  of  the  post-regicide  gov- 
ernment in  Servia,  141  /;  with- 
drawal of  by  Secretary  Knox, 
in  case  of  Zelaya  'a  government, 
150-151;  President  Wilson  re- 
fuses in  case  of  Huerta,  151- 
152  n ;  resolution  regarding  eon- 
federate  states,  238-239;  of 
Panama :  nature  and  purpose  of, 
289;  of  insurrectionary  govern- 
ment, when  justified,  348;  of 
belligerency,  conditions  which 
justify,  348-349 ;  premature, 
349 ;  premature  constitutes  un- 
warranted impeachment  of  sov- 
ereignty, 349;  of  U.  S.  by 
France,  349;  discretion  in  ac- 
cording, 448-449. 

Bedesdale,  Lord:  (97  n) ;  98  n; 
101. 

Bedress:    9-21. 

Beeves :     12  n. 

Befugees  (see  also  Asylum)  :  see 
Fugitive  slaves,  205-241 ;  see 
Political  refugees,  241-257. 

Befusal :  to  vis4  passports  of 
Jews  (1895),  72  n. 

Begional  control  (see  also  Super- 
vision, Mandates) :  299 ;  ap- 
proximation of  mandates  to, 
312. 

Behabilitation :  13 ;  what  con- 
stitutes adequate,  24. 

Beimbursement :  expenses  of  in- 
tervention against  Prince  of 
Chosu,  5;  for  intervention  in 
Cuba,  5. 


INDEX 


555 


Eeinsch,  P.   S.:    dn;    278  n. 

Reintegration :  assistance  for  pur- 
pose of  reestablishing  control 
over  lost  territory  not  justifiable, 
344. 

Relativity  (see  also  Adjustment; 
Compromise)  :  principle  of,  400- 
404. 

Eeligious  persecution:  see  Perse- 
cution, Intolerance. 

Remedies,    international :     1. 

Reparation:  35;  due  Germany 
for  French  aggression  (1870), 
37  n. 

Repington:     325-326  n;     363  n. 

Representations :  regarding  Ar- 
menian persecutions  (1915),  81- 
82. 

Reprisals:  Elgin  burns  Summer 
Palace,  39;  France  threatens 
Switzerland  with,  to  secure 
rights  of  French  Jew,  81  n; 
seizure  of  English  gunner  as,  207. 

Reputation:     19. 

Reshitelni:  destruction  of,  by  way 
of  self-help,  6. 

Resistance:  right  to  overcome, 
50-51. 

Responsibility  of  citizens:  for 
conduct  of  government,  458. 

Restoration:  assistance  for  pur- 
pose of  restoring  government 
not  justifiable,  344. 

Retaliation:  (see  Talion,  law  of) ; 
in  international,  44;  abrogation 
of  treaty  with  Russia,  78 ;  Amer- 
icans searched  in  Ireland  by  way 
of  (1848),  88;  use  of  territory 
by  Poles  might  be  justified  as, 
104  n. 

Retorsion  (see  also  Retaliation)  : 
British  minister  withholds  recog- 
nition (1879),  70. 

Revenge:  redress  based  upon,  9; 
first  component  of  satisfaction, 
9-10;  nature  of,  10;  restricted 
by  the  Iroquois,  11;  trial  of 
Kaiser,  12 ;  satisfaction  and  re- 
habilitation, 13 ;  failure  to  ex- 
act, consequences  of,  13-16; 
magnanimity,  16;  check  upon 
excessive,  20  n. 

Revolt  (see  also  Support  of  revo- 
lution) :  where  it  is  justifiable 
to  incite  to,  125;  incitement 
to,  no  evidence  of  U.  S.  in 
Panama,  290-291. 


Rey,   Francis:     (77  71). 

Rights  (see  also  Perfect  rights)  : 
abusive  insistence  upon,  399 
passim;  of  states,  restriction 
upon,  451 ;  technical  or  formal, 
obligation  of  states  to  depart 
from,  452 ;  no  absolute  or  per- 
fect, 455. 

Rivers,  international:  nature  of 
right  to  use,  287  n. 

Rivier,  A.:  (56»);  58 n;  393; 
434  n. 

Robin,  Raymond:    (66  n)  ;    (31»). 

Rolin-Jaequemyns:     309-310  n. 

Romanes,  George  J. :    9  n. 

Roosevelt:  18;  54;  76-79;  287  /; 
action  in  Panama  justified,  291- 
292  passim;  296 /;  365  n. 

Root,  Elihu:  30 /;  rights  of 
aliens  to  minimum  of  security, 
157-159;  163  /;  268  n;  nature 
of  action  in  Panama,  287  n; 
293;  doctrine  of  international 
easement,  295. 

Rossi,  Pellegrino:  (47  n)  ;  (283  n)  ; 
320  n ;  442  n. 

Rotteck,  H.  von:  (320  n)  ;  (353  n)  ; 
356»;  397  n;  424  n;  (442  n). 

Rotteck,  K.  von:     (55  n)  ;  386  n. 

Rougier,  Antoine:  (45  n);  52- 
53?i;  (55  n)  ;  (56  n);  58  n; 
(77  n);  146 /;  (321  n);  329  n. 

Roumania:     67. 

Royal  Commission  on  Fugutive 
Slaves:  206  n;  appointment  of, 
208;  report  of,  208. 

Rule:  of  obligation  to  agree  to 
reasonable  compromise  of  rights 
and  interests  for  common  good, 
V  (Preface). 

Russell,  Lord:  criticism  of,  98  n; 
action  of,  for  Poland  compared 
to  Palmerston 's,  100  n;  con- 
tempt for  foreign  policy  of, 
100  n ;  ignorance  of  principles 
of  international  law,  109  n;  202. 

Russell,   Bertrand:     301  n. 

Russia:  6;  26;  28 /;  65;  70; 
72;  77;  83;  89/;  131  passim; 
intervention  in  favor  of  Bul- 
garians, 128,  136. 

Sackville  West,  Lord :    323  n. 
St.  Vincent,  Lord:    207  n. 
Saleilles:     38. 

Salute  of  flag:  27-28;  Florida  in- 
cident, 27-28. 


556 


INDEX 


Sanction:  effective,  lacking  to 
guarantee  impartial  fulfilment, 
449-450;  ultimate,  based  on  ap- 
peal to  international  reason, 
457;  guarantee  of  justice  af- 
forded by  publication  of  reason 
before  recourse  to  force,  458. 

Santo  Domingo:     302  n. 

Larkar,  Benoy  Kinnar :    304  n. 

Satisfaction:  first  component  of 
revenge,  9-10;  one  of  the  com- 
ponents of  revenge,  13 ;  exces- 
sive: obligation  of  third  states 
to  prevent  conqueror  from  ex- 
acting, 420-421. 

Satow,  Sir  Ernest :    243. 

Seamen's  Act  of  March  4,  1915: 
261-268. 

Security:    36-37. 

Self -Determination  (see  also  Na- 
tionality, Oppression ) :  Mill 's 
suggestion  for  settlement  of 
Alsace-Lorraine  in  1870,  37  n; 
reluctance  of  governments  to 
favor,  86;  public  opinion 
favors,  86;  American  interfer- 
ence in  Ireland  (1848),  87-88; 
international  law  does  not  recog- 
nize right  of  autonomy,  87;  Pol- 
ish national  institutions,  90; 
promise  of  by  Russia  to  Poles 
in  Act  of  Vienna,  109 ;  denial 
of,  in  the  case  of  Poland  (1863), 
112;  112-120;  adherence  to 
principle  of  by  Senate,  124  n ; 
Creasy 's  statement  of  limits  of, 
124-125 ;  intervention  in  Greece 
(1827)  really  case  of,  126; 
Green  approves  policy  of  sup- 
porting, 134;  evils  of  national 
dependence,  304n;  interference 
in  favor  nationalities,  351. 

Self -Execution :  reason  why  per- 
sists in  international  relations, 
447-448. 

Self -Government :  see  Autonomy, 
Oppression,  Self-Determination. 

Self -Help:  3-6;  Falkland  Islands 
(1831),  4-5;  punishment  of 
Prince  of  Chosu  (1864),  5; 
Caroline  or  McLeod  affair,  5-6 ; 
Dresden  (1914),  destruction  of, 
6;  destruction  of  Reshitelni,  6; 
punishment  of  individuals  by 
way  of,  42 ;  intervention  in 
Cuba  (1898)  erroneously  classed 
as,  to  remove  nuisance,  12 In.; 


does  not  constitute  violation  of 
sovereignty,  322  n ;  justified  in 
case  of  constructive  attack,  374; 
erroneously  used  for  self- 
execution,  447. 

Self-interest :  enlightened,  policy 
of,  should  be  supported,  458. 

Self -Preservation :  self-help  classed 
as,  4;  Polish  insurrection  did 
not  endanger  safety  of  France 
and  England,  103-104;  Austria 
affected  by  Polish  insurrection, 
104  n ;  justification  for  inter- 
vention, 104n;  as  a  ground  of 
intervention,  392-414;  dangers 
of  permitting  discretionary  ac- 
tion for,  "454. 

Semi-Civilized  nations:  see  Aborig- 
ines, Humanitarian  intervention. 

Senior,  Nassau :  58  n ;  346  n ; 
390-391  n;  418  n  ;  423-424  n; 
425. 

Servia :      139  /. 

Severity  (see  also  Magnanimity) : 
ineffectual,  to  suppress  revolt, 
114  ». 

Shipping :  regulation  of  foreign, 
on  ground  of  humanity,  258- 
269. 

Slave  Trade:  humanitarian  inter- 
vention to  suppress,  19,5-205. 

Slavery:  contrary  to  international 
law,  206;  status  of,  under  in- 
ternational law,  214  /. 

Smith,  A.   H.:     14  n. 

Snow,  Alpheus  H. :  8 ;  views  on 
slave  trade,  196  n ;  uses  ' '  super- 
vision, ' '  298  n ;  nature  of  super- 
visory power,  301-302  n. 

Snow,   Freeman:     (133  ?i). 

Solidarity:  of  mankind,  Rougier 
considers  basis  of  humanitarian 
intervention,  53  n. 

Sonderbund :  Palmerston  thwarts 
interference,  347  n. 

Sovereignty  (see  also  Contempt  of 
sovereignty,  Violation  of  sov- 
ereignty, Discretion):  1;  pre- 
sumption of  legality  in  ease  of 
action  of  sovereign,  3 ;  presump- 
tion that  local  laws  are  not  in- 
humane, 215  ;  may  be  overcome, 
215;  presumption  in  favor  of 
legislation  of,  268;  limitation 
upon,  Hooker's  view,  281  n; 
Kebedgy  's,  282  n  ;  nature  of 
Colombia's,  over  Panama,  288; 


INDEX 


557 


of  Colombia  over  Panama,  dis- 
cussed by  Eoot,  293-295;  right 
of  state  to  act  upon  conscien- 
tious judgment,  403 ;  check  of 
other  states  over  decisions  of, 
403-404;  due  exercise  of,  455; 
obligation  upon  other  states  to 
correct  the  erroneous  Decision 
of  each  state,  455;  right  of 
state  to  decide  when  rights  and 
interests  are  endangered,  456. 

Soviet  government  (see  also  Bol- 
sheviki)  :  380-383. 

Spain:   95;    153;    199. 

Sponsion:  attempt  of  govern- 
ment to  give  right  of  interfer- 
ence, 107. 

Stapleton,  A.  G.  (47  n)  ;  109  n; 
150  n;  276;  (280);  319  n. 

Statement  of  reasons:  of  recourse 
to  force,  456-458. 

Status  quo:  defense  of,  to  main- 
tain balance  of  power,  415;  no 
standing  in  international  law, 
417-418. 

Stead,  W.  T.:    (97  n). 

Stowell,  E.  C.:  (305  »)  ;  (307  n)  ; 
364  n;  (380  n);  (396  n). 

Stowell,  Lord:    219  n;    222  n. 

Strauch:     (58  n)  ;    350  n;    421  n. 

Sudden  accessions  of  power:  right 
of  intervention  to  prevent,  425- 
426. 

Summer  Palace:  burning  of,  as 
reprisal,  39. 

Supervision  (see  also  European 
Concert,  Mandates):  297-316; 
Eoosevelt  on  obligation  of 
United  States  in  Western  Hemi- 
sphere, 54;  right  of  U.  S.  over 
Panama,  290;  presumption  in 
favor  of  U.  S.  acting  in  Pan- 
ama, 290  n ;  Eoosevelt  approves 
instances  of,  296;  origin  of 
bond  of  protection  and  depend- 
ence, 4ol. 

Support  of  revolution  (see  also 
Oppression):  345-355;  con- 
trary to  international  law,  345. 

Supreme  Court,  U.  S.:    269. 

Sweden :    95 ;    96  n. 

Switzerland :      80  n. 

Syria:    63. 

System  of  self-execution  (some- 
times called  "self-help") :  de- 
fects of,  45-46 ;  advantages  of, 
46. 


Talion  (see  also  Eetaliation,  Ee- 
prisals,  Eetortion)  :  law  of, 
11  n;  law  of,  applied  in  inter- 
national relations,  44. 

Temporary  refuge  (see  also  Asy- 
lum) :  U.  S.  distinguishes  be- 
tween, and  asylum,  247 ;  247-252. 

Tennyson,  Lord:    14  n;    458. 

Territorial  sovereignty:  violations 
of,  when  justified,  402-403. 

Thrasher 's  case :     156  n. 

Tinoco  government :  President 
Wilson  refuses  to  recognize, 
152  n;  300  n. 

Threats  (see  also  Protest) :  France 
makes  of  reprisals  to  secure 
rights  of  French  Jews  in  Switz- 
erland, 81  n;  menacing  lan- 
guage (Poland  1863),  93. 

Transit:  denial  of,  on  ground  of 
humanity,  270-273;  right  of, 
recognized  by  Grotius,  287  n; 
illustration  of  relativity  of 
rights,  403  n. 

Treat,  P.  J.:    5  n. 

Treaty:  cooperation  to  suppress 
slave  trade,  (1841),  (1842), 
(1862),  8;  instances  of  treaties 
for  ' '  combination, ' '  references 
for,  9  n ;  of  Washington,  May  8, 
(1871);  apology  of  Gt.  B.  for 
escape  of  Alabama  (1871),  25- 
26;  expiation  for  Boxer  out- 
rages (1900),  30;  quadruple 
(1834),  153;  of  U.  S.  and 
Colombia  (1846):  289-290. 

Treaty  as  basis  of  intervention 
(see  also  Guarantee) :  Poland, 
106 /;  cannot  create  right  of 
intervention  in  internal  affairs, 
107;  when  constitutes  reason- 
able restriction,  107  n;  Heytes- 
bury  on  impossibility  of  guar- 
anteeing particular  government, 
108  n;  as  basis  of  guarantee, 
109;  value  of  to  facilitate  in- 
tervention, 110;  in  Kongo,  163, 
165-166,  169,  176;  purpose  of 
treaties,  439 ;  treaties  to  inter- 
fere not  legal,  439-443  ;  legality 
of  stipulation  for  common  good, 
443-444. 

Trent:     case  of,   16-17. 

Trummer,   Dr. :     38(i  n. 

Turkey:  63-65;  82;  296;  col- 
lective control  of,  309  n;  organ- 
ization of  dual  control,  310. 


INDEX 


Twiss,  Sir  Travers:  3  n;  (220  n)  ; 
(372  n);  (394  n)  ;  (402  n)  ; 
(403  »);  408  »;  410-411  n; 
428  n;  441  »;  (445  n). 

Uncivilized  warfare:  125-139;  as 
justification  for  intervention 
(Poland  1863),  113-115  n;  in 
Cuba,  121;  as  a  ground  for 
humanitarian  intervention,  125- 
139. 

Uncompromising  attitude  (see  also 
Adjustment,  Compromise) : 
rightful  consequences  of  unrea- 
sonable obstruction  by  Colom- 
bia, 293  n. 

United  States:  obligation  of,  in 
Western  Hemisphere,  54;  action 
to  prevent  persecution  oi  Jews, 
67-79 ;  objects  to  enforced  im- 
migration of  Eussian  Jews 
(1891),  74-75;  refuses  to  inter- 
vene for  Poland  (1863),  95  n; 
policy  of,  regarding  European 
affairs,  95  n ;  moves  to  secure 
joint  action  in  Cuba,  198-199. 

Vattel:  (47  n);  50-51;  (55  n); 
59  n;  (288  n)  ;  353  n;  354  n; 
(356  n);  357;  359;  361;  370- 
372;  374  n;  376  n;  378;  393; 
403  n;  407;  426-427;  433  n. 

Vessels,  public  (see  also  Com- 
merce) :  status  of,  in  foreign 
ports,  218 /,  and  passim;  de- 
nial of  entry,  to  enforce  pro- 
hibition, 273-276. 

Victoria,  Francisco:    433  n. 

Vidari:      (320);     424  n. 

Vienna,  Congress  of:  final  act  of, 
91. 

Vindication  of  international  law: 
obligation  not  sufficiently  under- 
stood, 47-48. 

Vindieiae  Contra  Tyrannos:  ap- 
proves of  humanitarian  inter- 
vention, 55. 

Violation  of  sovereignty:  defini- 
tion of,  322 ;  instances  of, 
322 /;  does  not  include  self- 
help,  322  n ;  limits  of  propa- 
ganda abroad,  384-385  n. 

Virginius:    self-help,  7. 

Vis4:  Russian  consuls  refuse,  of 
passports  of  Jews,  72  n. 


Wambaugh,  Eugene :     160  n. 

War  (see  also  Laws  of  war,  Un- 
civilized warfare,  Preventive 
war,  Protracted  civil  war) : 
laws  of,  282  n. 

Warnkoenig :    23  n. 

Warships:  enforcement  of  laws 
contrary  to  humanity,  214;  ex- 
clusion, 217. 

Webster,  Daniel :     156  n. 

Wei-Hai-Wei:     421  n. 

Werdenhagen,  Angelius:  views  on 
humanitarian  intervention,  58  n. 

Wergild:  compared  with  exem- 
plary damages:  31. 

Westlake,  John:  47  n;  53-54; 
(55);  196  n;  (277  n)  ;  279- 
280;  (298n);  314-315  n;  317  n; 
345  n;  (348  n)  ;  (374  n); 
375  n;  387-388  n;  392  n;  393; 
394-395;  397  n;  400  n;  401; 
403;  411  n;  424-425  n;  426  n; 
(428  n);  435  n;  437  n. 

Wheaton:  (55);  109  n;  (372  n)  ; 
395;  425  n. 

Whewell:    288  n. 

Wicker,  C.  W.:    (428  n). 

Wilhelm  II :  Lloyd  George 's  prom- 
ise, 12  n ;  trial  of,  43  ;  Tweed- 
mouth  letter  discussed,  325  n. 

Wilson,  President :  43  ;  policy  of 
interference  to  maintain  con- 
stitutional government,  151-152 ; 
interference  in  Mexico,  151  n; 
Panama  supports  President  Wil- 
son against  Huerta,  152n;  in- 
terferes to  prevent  recognition 
of  Tinoco  government,  152  n ; 
266  n;  300  n;  301  n;  303  n; 
396;  proposes  to  guarantee  ter- 
ritory of  American  states,  443 ; 
policy  of,  participation  in  Euro- 
pean affairs,  449. 

Wilson  and  Tucker :    425  n. 

Woolsey,  T.  D. :  47-48  n;  (196n); 
(220  n);  (287  n) ;  (288  n) ; 
426  n;  441  n. 

Woolsey,  'i'.  S. :  justifies  humani- 
tarian intervention  in  Cuba,  57- 
58;  grounds  of  intervention 
Cuba  (1898),  122  n. 

Wolff:      (408n). 

Zanzibar:      action    of    powers    to 

prevent  slave  trade,  203-204. 
Zelaya:     43;    150;    303  n. 


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